Common use of Remedies with Respect to Collateral Clause in Contracts

Remedies with Respect to Collateral. (a) Upon the occurrence and during the continuance of a Termination Event, the Agent shall have the rights and remedies of a secured party under the UCC in effect on the date thereof; provided that the Agent may not sell, lease or dispose of the Collateral unless Borrower shall fail to pay when due (i) any portion or all of the principal of the Aggregate Advances within two (2) Business Days after the Final Payment Date, or (ii) any interest on the Aggregate Advances and such failure shall continued unremedied for 5 Business Days. Notwithstanding the foregoing or anything contained herein to the contrary, the Agent shall, upon the occurrence and during the continuance of a Termination Event, be entitled to exercise all rights and remedies available to it under the Program Documents and at law, including without limitation its right to withdraw Collections from the Collection Accounts and the Lock-Box and apply them as set forth in this Agreement. (b) Proceeds of any of the Collateral and payments by Borrower during the existence of a Termination Event received by the Agent shall be applied by the Agent in accordance with the provisions of Section 2.08(b). In the event that the proceeds of the Collateral are not sufficient to pay the Obligations in full, Borrower shall remain liable for any deficiency. (c) Unless and except to the extent expressly provided for to the contrary herein, the rights of the Agent specified herein shall be in addition to, and not in limitation of, Agent’s rights under the UCC, or any other statute or rule of law or equity, or under any other provision of any of the Program Documents, or under the provisions of any other document, instrument or other writing executed by Borrower or any third party in favor of the Agent all of which may be exercised successively or concurrently.

Remedies with Respect to Collateral. (a) Upon the occurrence and during the continuance of a Termination EventIf any Pledgor fails to pay or perform any Secured Obligation when due, the Agent Operating Partnership and/or the Company, without obligation to resort to any other security (other than insurance proceeds, if any, as contemplated in Section 2.3(c) of the Indemnification Agreement), shall have the rights right at any time and remedies of a secured party under the UCC in effect on the date thereof; provided that the Agent may not sell, lease from time to time to receive all or dispose any part of the Collateral unless Borrower with a value equal to the amount of such Secured Obligation, and all right, title and interest, claim and demand therein and right of redemption thereof and to sell the Collateral in any manner permitted by the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”). (b) Notwithstanding anything to the contrary in this Agreement, the sole recourse of the Operating Partnership and the Company against any Pledgor for the Secured Obligations and the obligations of each such Pledgor under this Agreement is limited to the rights of such Pledgor in any such Collateral that is applied to satisfy a Secured Obligation. The parties hereto acknowledge and agree that the Pledgor OP Units and/or the Pledgor Common Shares pledged by each Pledgor pursuant to the terms of this Agreement shall fail be released to pay when due satisfy the obligations under this Agreement on a pro rata basis from each Pledgor based on such Pledgor’s Pro Rata Share (ias defined in the Indemnification Agreement). (c) any portion No demand, advertisement or notice, all of the principal which are hereby expressly waived, shall be required in connection with any transfer of the Aggregate Advances within two (2) Business Days after the Final Payment Date, or (ii) any interest on the Aggregate Advances and such failure shall continued unremedied for 5 Business Days. Notwithstanding the foregoing or anything contained herein Collateral to the contrary, Operating Partnership and/or the Agent shall, upon the occurrence and during the continuance of a Termination Event, be entitled Company pursuant to exercise all rights and remedies available to it under the Program Documents and at law, including without limitation its right to withdraw Collections from the Collection Accounts and the Lock-Box and apply them as set forth in this Agreement. (bd) Proceeds Each of the Pledgors, the Company and the Operating Partnership agree to treat, to the extent permitted by applicable law, any application of the Collateral and payments by Borrower during in discharge of any Secured Obligations as a non-taxable adjustment to the existence portion of a Termination Event the consideration received by any such Pledgor as a result of the Agent transactions contemplated by the Contribution Agreement in the form of OP Units and/or Common Shares for U.S. federal income tax purposes. (e) The rights of the Operating Partnership and the Company under this Agreement shall not be conditioned or contingent upon the pursuit by the Operating Partnership or the Company of any right or remedy against the Operating Partnership or the Company or against any other Person which may be or become liable in respect of all or any part of the Secured Obligations or against any other security therefor, guarantee thereof or right of offset with respect thereto. Neither the Operating Partnership nor the Company shall be applied by the Agent in accordance with the provisions of Section 2.08(b). In the event that the proceeds liable for any failure to demand, collect or realize upon all or any part of the Collateral are not sufficient to pay the Obligations in full, Borrower shall remain liable or for any deficiencydelay in doing so, nor shall it be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Pledgors or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. (cf) Unless The Pledgors recognize that the Operating Partnership and except the Company may be unable to effect a public sale of the Collateral by reason of certain provisions contained in the Securities Act of 1933, as amended, and applicable state securities laws and, under the circumstances then existing, may reasonably resort to a private sale to a registered group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for their own account for investment and not with a view to the extent expressly provided for distribution or resale of the Collateral. The Pledgors agree that a private sale so made may be at a price and on other terms less favorable to the contrary herein, seller than if the rights Collateral were sold at public sale and that the Operating Partnership and the Company shall have no obligation to delay sale of the Agent specified herein Collateral for the period of time necessary to permit the Pledgors, even if the Pledgors would agree, to register or qualify the Collateral for public sale under the Securities Act of 1933, as amended, and applicable state securities laws. The Pledgors agree that a private sale made under the foregoing circumstances and otherwise in a commercially reasonable manner shall be deemed to have been made in addition to, and not in limitation of, Agent’s rights a commercially reasonable manner under the UCC, or any other statute or rule of law or equity, or under any other provision of any of the Program Documents, or under the provisions of any other document, instrument or other writing executed by Borrower or any third party in favor of the Agent all of which may be exercised successively or concurrently.

Remedies with Respect to Collateral. (a) Upon the occurrence and during the continuance of a Termination EventIf any Pledgor fails to pay or perform any Secured Obligation when due, the Agent Operating Partnership and/or the Company, without obligation to resort to any other security (other than insurance proceeds, if any, as contemplated in Section 2.3(c) of the Indemnification Agreement), shall have the rights right at any time and remedies of a secured party under the UCC in effect on the date thereof; provided that the Agent may not sell, lease from time to time to receive all or dispose any part of the Collateral unless Borrower with a value equal to the amount of such Secured Obligation, and all right, title and interest, claim and demand therein and right of redemption thereof and to sell the Collateral in any manner permitted by the Uniform Commercial Code as in effect in the State of Delaware (the “UCC”). (b) Notwithstanding anything to the contrary in this Agreement, the sole recourse of the Operating Partnership and the Company against any Pledgor for the Secured Obligations and the obligations of each such Pledgor under this Agreement is limited to the rights of such Pledgor in any such Collateral that is applied to satisfy a Secured Obligation. The parties hereto acknowledge and agree that the Pledgor OP Units and/or the Pledgor Common Shares pledged by each Pledgor pursuant to the terms of this Agreement shall fail be released to pay when due satisfy the obligations under this Agreement on a pro rata basis from each Pledgor based on such Pledgor’s Pro Rata Share (ias defined in the Indemnification Agreement). (c) any portion No demand, advertisement or notice, all of the principal which are hereby expressly waived, shall be required in connection with any transfer of the Aggregate Advances within two (2) Business Days after the Final Payment Date, or (ii) any interest on the Aggregate Advances and such failure shall continued unremedied for 5 Business Days. Notwithstanding the foregoing or anything contained herein Collateral to the contrary, Operating Partnership and/or the Agent shall, upon the occurrence and during the continuance of a Termination Event, be entitled Company pursuant to exercise all rights and remedies available to it under the Program Documents and at law, including without limitation its right to withdraw Collections from the Collection Accounts and the Lock-Box and apply them as set forth in this Agreement. (bd) Proceeds Each of the Pledgors, the Company and the Operating Partnership agree to treat, to the extent permitted by applicable law, any application of the Collateral and payments by Borrower during in discharge of any Secured Obligations as a non-taxable adjustment to the existence portion of a Termination Event the consideration received by any such Pledgor as a result of the Agent transactions contemplated by the Merger Agreements in the form of OP Units and/or Common Shares for U.S. federal income tax purposes. (e) The rights of the Operating Partnership and the Company under this Agreement shall not be conditioned or contingent upon the pursuit by the Operating Partnership or the Company of any right or remedy against the Operating Partnership or the Company or against any other Person which may be or become liable in respect of all or any part of the Secured Obligations or against any other security therefor, guarantee thereof or right of offset with respect thereto. Neither the Operating Partnership nor the Company shall be applied by the Agent in accordance with the provisions of Section 2.08(b). In the event that the proceeds liable for any failure to demand, collect or realize upon all or any part of the Collateral are not sufficient to pay the Obligations in full, Borrower shall remain liable or for any deficiencydelay in doing so, nor shall it be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Pledgors or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. (cf) Unless The Pledgors recognize that the Operating Partnership and except the Company may be unable to effect a public sale of the Collateral by reason of certain provisions contained in the Securities Act of 1933, as amended, and applicable state securities laws and, under the circumstances then existing, may reasonably resort to a private sale to a registered group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for their own account for investment and not with a view to the extent expressly provided for distribution or resale of the Collateral. The Pledgors agree that a private sale so made may be at a price and on other terms less favorable to the contrary herein, seller than if the rights Collateral were sold at public sale and that the Operating Partnership and the Company shall have no obligation to delay sale of the Agent specified herein Collateral for the period of time necessary to permit the Pledgors, even if the Pledgors would agree, to register or qualify the Collateral for public sale under the Securities Act of 1933, as amended, and applicable state securities laws. The Pledgors agree that a private sale made under the foregoing circumstances and otherwise in a commercially reasonable manner shall be deemed to have been made in addition to, and not in limitation of, Agent’s rights a commercially reasonable manner under the UCC, or any other statute or rule of law or equity, or under any other provision of any of the Program Documents, or under the provisions of any other document, instrument or other writing executed by Borrower or any third party in favor of the Agent all of which may be exercised successively or concurrently.

Remedies with Respect to Collateral. (a) Upon During the occurrence and during the continuance period an Event of a Termination Event, the Agent Default shall have occurred and be continuing, and upon the affirmative vote and direction of the Majority Buyers: (A) the Company shall assemble the Collateral at such place or places as may be reasonably designated by the Majority Buyers or their representative; (B) the Majority Buyers or their representative may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral; (C) the Majority Buyers shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC Uniform Commercial Code (whether or not said Uniform Commercial Code is in effect in the jurisdiction where the rights and remedies are asserted) 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, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the holders of the Notes were the sole and absolute owner thereof (and the Company agrees to take all such action as may be appropriate to give effect to such right); (D) the Majority Buyers or their Representative in their discretion may, in the name of the Majority Buyers or in the name of the Company or otherwise, demand, sue for, collect or receivx xny money or property at any time payable or receivable on account of or in exchange for any of the date thereofCollateral, but shall be under no obligation to do so; (E) the Majority Buyers, or their Representative, may take immediate possession and occupancy of any premises owned, used or leased by the Company and exercise all other rights and remedies of an assignee which may be available to the Majority Buyers; provided that and (F) the Agent may not Majority Buyers may, upon ten (10) Business Days prior written notice to the Company of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Majority Buyers or its Representative, sell, lease lease, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the Collateral unless Borrower shall fail Majority Buyers deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to pay when due effect any such disposition or of the time or place thereof (i) except such notice as is required above or by applicable statute and cannot be waived), and the Majority Buyers or anyone else may be the purchaser, lessee, assignee or recipient of any portion or all of the principal Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Aggregate Advances within two Company, any such demand, notice and right or equity being hereby expressly waived and released. The Majority Buyers may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. Any actions taken by the Majority Buyers pursuant to this Section 10 shall be taken for the benefit of all holders of the Notes, and the proceeds of each collection, sale or other disposition of the Collateral under this Section 10 shall be applied in the following order: (2i) Business Days after the Final Payment Datecost of collection and foreclosure upon the Collateral, or (ii) any interest on the Aggregate Advances and such failure shall continued unremedied for 5 Business Days. Notwithstanding the foregoing or anything contained herein to the contrarypayment of all accrued and unpaid interest, (iii) to the Agent shallpayment of all unpaid principal, upon and (iv) to any other amounts owing to the occurrence and during holders of the continuance of a Termination Event, be entitled to exercise all rights and remedies available to it Notes under the Program Documents and at law, including without limitation its right to withdraw Collections from the Collection Accounts and the Lock-Box and apply them as set forth in this AgreementTransaction Documents. (b) Proceeds of any of the Collateral and payments by Borrower during the existence of a Termination Event received by the Agent shall be applied by the Agent in accordance with the provisions of Section 2.08(b). In the event that the proceeds of the Collateral are not sufficient to pay the Obligations in full, Borrower shall remain liable for any deficiency. (c) Unless and except to the extent expressly provided for to the contrary herein, the rights of the Agent specified herein shall be in addition to, and not in limitation of, Agent’s rights under the UCC, or any other statute or rule of law or equity, or under any other provision of any of the Program Documents, or under the provisions of any other document, instrument or other writing executed by Borrower or any third party in favor of the Agent all of which may be exercised successively or concurrently.