Remedies With Respect to the Collateral. (a) Upon the occurrence of an Event of Default, then or at any time during the continuance of such occurrence, the Lender is hereby authorized and empowered, at its election, (i) to transfer and register in its or its nominee's name the whole or any part of the Collateral, (ii) to exercise all voting rights with respect thereto, (iii) to demand, xxx for, collect, receive and give acquittance for any and all cash dividends or other distributions or monies due or to become due upon or by virtue thereof, and to settle prosecute or defend any action or proceeding with respect thereto, (iv) to sell in one or more sales the whole or any part of the Collateral or otherwise to transfer or assign the same, applying the proceeds therefrom to the payment of the Borrower's obligations under this Agreement, and (v) otherwise to act with respect to the Collateral or the proceeds thereof as though the Lender were the outright owner thereof, the Borrower hereby irrevocably constituting the Lender as its proxy and attorney-in-fact, with full power of substitution to do so. The Borrower and the Lender hereby agree that, if an Event of Default shall have occurred prior to the completion of a public offering of common stock of the Lender and the Lender has determined to accept the KMOC Stock as payment for the principal and interest outstanding on the Loan, each share of KMOC Stock shall be valued, solely for determining the number of shares to be paid pursuant to this Section 2.3(a), (i) at U.S.$520.00 or (ii) at the option of the Lender, at the appraised value of such shares as determined by a nationally accepted accounting firm; provided, however, that the value of each share of KMOC Stock determined pursuant to clause (i) shall be adjusted as appropriate for any stock splits, combinations and dividends or other distributions consisting of, or payable in, shares of common stock of the Lender. Notwithstanding the foregoing, following the completion of an initial public offering of the Lender's common stock, the common stock of the Lender shall be valued at the market price listed for such shares on the public exchange on which such shares are traded. (b) The Borrower agrees that it will not at any time plead, claim or take the benefit of any appraisal, valuation, stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or delay the enforcement of this Agreement, or the absolute sale of the whole or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder. and the Borrower waives the benefit of all such laws to the extent it lawfully may do so. The Borrower agrees that it will not interfere with any right, power and remedy of the Lender provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Lender of any one or more such rights, powers or remedies. No failure or delay on the part of the Lender to exercise any such right, power or remedy, and no notice or demand which may be given to or made upon the Borrower by the Lender with respect to any such remedies, shall operate as a waiver thereof, or limit or impair the Lender's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice its rights as against the Borrower in any respect.
Appears in 2 contracts
Samples: Investment Agreement (Khanty Mansiysk Oil Corp), Investment Agreement (Khanty Mansiysk Oil Corp)
Remedies With Respect to the Collateral. (a) Upon the occurrence of an Event of Default, then or at any time during the continuance of such occurrence, the Lender is hereby authorized and empowered, at its election, (i) to transfer and register in its or its nominee's name the whole or any part of the Collateral, (ii) to exercise all voting rights with respect thereto, (iii) to demand, xxx for, collect, receive and give acquittance for any and all cash dividends or other distributions or monies due or to become due upon or by virtue thereof, and to settle prosecute or defend any action or proceeding with respect thereto, (iv) to sell in one or more sales the whole or any part of the Collateral or otherwise to transfer or assign the same, applying the proceeds therefrom to the payment of the Borrower's obligations under this Agreement, and (v) otherwise to act with respect to the Collateral or the proceeds thereof as though the Lender were the outright owner thereof, the Borrower hereby irrevocably constituting the Lender as its proxy and attorney-in-fact, with full power of substitution to do so. The Borrower and the Lender hereby agree that, if an Event of Default shall have occurred prior to the completion of a public offering of common stock of the Lender and the Lender has determined to accept the KMOC Stock as payment for the principal and interest outstanding on the Loan, each share of KMOC Stock shall be valued, solely for determining the number of shares to be paid pursuant to this Section 2.3(a), (i) at U.S.$520.00 or (ii) at the option of the Lender, at the appraised value of such shares as determined by a nationally accepted accounting firm; provided, however, that the value of each share of KMOC Stock determined pursuant to clause (i) shall be adjusted as appropriate for any stock splits, combinations and dividends or other distributions consisting of, or payable in, shares of common stock of the Lender. Notwithstanding the foregoing, following the completion of an initial public offering of the Lender's common stock, the common stock of the Lender shall be valued at the market price listed for such shares on the public exchange on which such shares are traded.
(b) The Borrower agrees that it will not at any time plead, claim or take the benefit of any appraisal, valuation, stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or delay the enforcement of this Agreement, or the absolute sale of the whole or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder. and the Borrower waives the benefit of all such laws to the extent it lawfully may do so. The Borrower agrees that it will not interfere with any right, power and remedy of the Lender provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Lender of any one or more such rights, powers or remedies. No failure or delay on the part of the Lender to exercise any such right, power or remedy, and no notice or demand which may be given to or made upon the Borrower by the Lender with respect to any such remedies, shall operate as a waiver thereof, or limit or impair the Lender's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice its rights as against the Borrower in any respect.the
Appears in 2 contracts
Samples: Investment Agreement (Khanty Mansiysk Oil Corp), Investment Agreement (Khanty Mansiysk Oil Corp)
Remedies With Respect to the Collateral. (a) Upon Subject to the occurrence rights of an Event of Defaultthe Pledgor to submit the matter to arbitration in accordance with the Dispute Resolution Provisions, then if the Pledgor fails to pay or perform any Secured Obligation when due, the Pledgee, without obligation to resort to other security, shall have the right at any time during and from time to time and by notice to the continuance of such occurrence, the Lender is hereby authorized and empowered, at its election, (i) Escrow Agent to transfer and register in its or its nominee's name the whole receive all or any part of Collateral with a Value equal to the Collateralamount of such Secured Obligation, (ii) to exercise all voting rights with respect thereto, (iii) to demand, xxx for, collect, receive and give acquittance for any and all cash dividends or other distributions or monies due or to become due upon or by virtue thereof, and to settle prosecute or defend any action or proceeding with respect thereto, (iv) to sell in one or more sales parcels at the whole same or any part of the Collateral or otherwise to transfer or assign the same, applying the proceeds therefrom to the payment of the Borrower's obligations under this Agreementdifferent times, and (v) otherwise to act with respect to the Collateral or the proceeds thereof as though the Lender were the outright owner all right, title and interest, claim and demand therein and right of redemption thereof, the Borrower hereby irrevocably constituting the Lender as its proxy and attorney-in-fact, with full power of substitution to do so. The Borrower and the Lender hereby agree that, if an Event of Default shall have occurred prior to the completion of a public offering of common stock of the Lender and the Lender has determined to accept the KMOC Stock as payment for the principal and interest outstanding on the Loan, each share of KMOC Stock shall be valued, solely for determining the number of shares to be paid pursuant to this Section 2.3(a), (i) at U.S.$520.00 or (ii) at the option of the Lender, at the appraised value of such shares as determined by a nationally accepted accounting firm; provided, however, that the value of each share of KMOC Stock determined pursuant to clause (i) shall be adjusted as appropriate for any stock splits, combinations and dividends or other distributions consisting of, or payable in, shares of common stock of the Lender. Notwithstanding the foregoing, following the completion of an initial public offering of the Lender's common stock, the common stock of the Lender shall be valued at the market price listed for such shares on the public exchange on which such shares are traded.
(b) The Borrower agrees that it will not at any time plead, claim or take the benefit of any appraisal, valuation, stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or delay the enforcement of this Agreement, or the absolute sale of the whole or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder. and the Borrower waives the benefit of all such laws Notwithstanding anything to the extent it lawfully may do so. The Borrower agrees that it will not interfere with any right, power and remedy of the Lender provided for contrary in this Agreement (or now the Contribution Agreement), the sole recourse of the Pledgee against the Pledgor for the Secured Obligations and the obligations of the Pledgor under this Agreement is limited to the rights of the Pledgor in any such Collateral that is applied to satisfy a Secured Obligation.
(c) Other than as expressly set forth herein, no demand, advertisement or hereafter notice, all of which are hereby expressly waived, shall be required in connection with any transfer of Collateral to the Pledgee pursuant to this Agreement.
(d) Subject to the provisions of Section 13(b), the remedies provided herein in favor of the Pledgee shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in favor of the Pledgee existing at law or in equity equity.
(e) Pledgor and Pledgee agree to treat any application of Pledged Interests or by statute or otherwise, or other Collateral in discharge of any Secured Obligations as a non-taxable adjustment to the exercise or beginning portion of the exercise consideration received by the Lender Pledgor pursuant to the Contribution Agreement in the form of any one or more such rights, powers or remedies. No failure or delay on OP Units unless otherwise required pursuant to a “determination” within the part meaning of Section 1313(a) of the Lender to exercise any such rightInternal Revenue Code of 1986, power or remedy, and no notice or demand which may be given to or made upon the Borrower by the Lender with respect to any such remedies, shall operate as a waiver thereof, or limit or impair the Lender's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice its rights as against the Borrower in any respectamended.
Appears in 1 contract
Samples: Contribution Agreement (Easterly Government Properties, Inc.)
Remedies With Respect to the Collateral. (a) Upon At such time that a claim for indemnification under the occurrence of an Event of DefaultContribution Agreement becomes a Secured Obligation, then or the Pledgee, without obligation to resort to other security, shall have the right at any time during the continuance of such occurrenceand from time to time to redeem, the Lender is hereby authorized sell, resell, assign and empowereddeliver, at its election, (i) to transfer and register in its or its nominee's name the whole discretion, all or any part of Collateral with a Value equal to the Collateralamount of the Secured Obligation (the "Indemnification Amount"), (ii) to exercise all voting rights with respect thereto, (iii) to demand, xxx for, collect, receive and give acquittance for any and all cash dividends or other distributions or monies due or to become due upon or by virtue thereof, and to settle prosecute or defend any action or proceeding with respect thereto, (iv) to sell in one or more parcels, at the same or different times, and all right, title and interest, claim and demand therein and right of redemption thereof, at any public or private sale, for cash, upon credit or for future delivery, and in connection therewith the Pledgee may grant options. Each such purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. If any part of the Collateral is sold by the Pledgee upon credit or for future delivery, the Pledgee shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, the Pledgee may resell the Collateral. In no event shall a Pledgor be credited with any part of the proceeds of sale of any Collateral until cash payment thereof has actually been received by the Pledgee.
(b) No demand, advertisement or notice, all of which are hereby expressly waived, shall be required in connection with (i) any redemption by the Operating Partnership of any Collateral in accordance with the Operating Partnership Agreement or (ii) any sale or other disposition of any part of the Collateral which threatens to decline speedily in value or which is of a type customarily sold on a recognized market. Except as set forth in the preceding sentence, the Pledgee shall give the Pledgors at least ten days' prior notice of the time and place of any public sale and of the time after which any private sale or other disposition is to be made, which notice the Pledgors agree is reasonable, all other demands, advertisements and notices being hereby waived. The Pledgee shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the fact that notice of sale may have been given. The Pledgee 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 sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each private sale of Collateral of a type customarily sold in a recognized market and upon each public sale, the Pledgee may purchase all or any of the Collateral being sold, free from any equity or right of redemption, which is hereby waived and released, and may make payment therefor by release or discharge of the Secured Obligations in lieu of cash payment, and may, upon compliance with the terms of sale, hold, retain and dispose of such Collateral without further accountability therefor. In the case of all sales of Collateral, public or private, the whole Pledgee may deduct from the proceeds of sale all costs and expenses of every kind for sale or delivery, including brokers' and attorneys' fees, and the Pledgee shall apply any balance of the proceeds of sale to the payment of the Secured Obligations. Recourse against the Pledgors is joint and several, however, is limited to the rights of the Pledgors in the Collateral and the Pledgors, collectively, shall not be liable for any deficiency in the proceeds of sale of the Collateral to the payment of the Secured Obligations. If any proceeds of sale remain after payment in full of such costs and expenses and all of the Secured Obligations, they shall be held by the Pledgee as additional Collateral hereunder, subject to any duty of the Pledgee imposed by law to the holder of any subordinate security interest in the Collateral known to the Pledgee.
(c) For purposes of this Section 11, an agreement to sell all or any part of the Collateral or otherwise shall be treated as a sale thereof and the Pledgee shall be free to transfer or assign the samecarry out such sale pursuant to such agreement, applying the proceeds therefrom and no Pledgor shall be entitled to the payment return of any of the Borrower's obligations under this Agreementsame subject thereto, and (v) otherwise to act with respect to notwithstanding that after the Collateral or the proceeds thereof as though the Lender were the outright owner thereof, the Borrower hereby irrevocably constituting the Lender as its proxy and attorney-in-fact, with full power of substitution to do so. The Borrower and the Lender hereby agree that, if an Event of Default Pledgee shall have occurred prior to the completion of a public offering of common stock of the Lender entered into such an agreement, all Secured Obligations may have been paid and the Lender has determined to accept the KMOC Stock as payment for the principal and interest outstanding on the Loan, each share of KMOC Stock shall be valued, solely for determining the number of shares to be paid pursuant to this Section 2.3(a), (i) at U.S.$520.00 or (ii) at the option of the Lender, at the appraised value of such shares as determined by a nationally accepted accounting firm; provided, however, that the value of each share of KMOC Stock determined pursuant to clause (i) shall be adjusted as appropriate for any stock splits, combinations and dividends or other distributions consisting of, or payable in, shares of common stock of the Lender. Notwithstanding the foregoing, following the completion of an initial public offering of the Lender's common stock, the common stock of the Lender shall be valued at the market price listed for such shares on the public exchange on which such shares are tradedperformed in full.
(bd) The Borrower agrees Each Pledgor recognizes that it will not at any time pleadthe Pledgee may be unable to effect a public sale of all or a part of the Collateral by reason of certain prohibitions contained in the Securities Act of 1933, claim or take the benefit of any appraisalas amended, valuation, stay, extension, moratorium or redemption law as now or hereafter in force in order to prevent or delay the enforcement of this Agreementeffect, or the absolute sale of the whole in applicable Blue Sky or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder. and the Borrower waives the benefit of all such laws to the extent it lawfully may do so. The Borrower agrees that it will not interfere with any rightother state securities laws, power and remedy of the Lender provided for in this Agreement or as now or hereafter in effect, but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor agrees that private sales so made may be at prices and other terms less favorable to the seller than if such Collateral were sold at public sales, and that the Pledgee has no obligation to delay sale of any such Collateral for the period of time necessary to permit the issuer of such Collateral, even if such issuer would agree, to register such Collateral for public sale under such applicable securities laws. Each Pledgor agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(e) The remedies provided herein in favor of the Pledgee shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in favor of the Pledgee existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Lender of equity.
(f) The Pledgee shall not have any one or more such rights, powers or remedies. No failure or delay on the part of the Lender duty to exercise any such rightof the rights, power privileges, options or remedypowers or to sell or otherwise realize upon any of the Collateral, as herein authorized, and no notice the Pledgee shall not be responsible for any failure to do so or demand which may be given to or made upon the Borrower by the Lender with respect to any such remedies, shall operate as a waiver thereof, or limit or impair the Lender's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice its rights as against the Borrower delay in any respectso doing.
Appears in 1 contract
Remedies With Respect to the Collateral. (a) Upon At such time that a Claim becomes a Secured Obligation, the occurrence of an Event of DefaultPledgee, then or without obligation to resort to other security, shall have the right at any time during and from time to time to cause the continuance of such occurrenceOperating Partnership to redeem, the Lender is hereby authorized sell, resell, assign and empowereddeliver, at its election, (i) to transfer and register in its or its nominee's name the whole discretion, all or any part of Collateral with a Value equal to the Collateralamount of the Secured Obligation (such Collateral to consist of Collateral delivered by a Pledgor which is liable for such Secured Obligation), (ii) to exercise all voting rights with respect thereto, (iii) to demand, xxx for, collect, receive and give acquittance for any and all cash dividends or other distributions or monies due or to become due upon or by virtue thereof, and to settle prosecute or defend any action or proceeding with respect thereto, (iv) to sell in one or more parcels at the same or different times, and all right, title and interest, claim and demand therein and right of redemption thereof, at any public or private sale, for cash, upon credit or for future delivery, and in connection therewith the Pledgee may grant options. Each such purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. If any part of the Collateral is sold by the Pledgee upon credit or for future delivery, the Pledgee shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, the Pledgee may resell the Collateral. In no event shall a Pledgor be credited with any part of the proceeds of sale of any Collateral until cash payment thereof has actually been received by the Pledgee.
(b) No demand, advertisement or notice, all of which are hereby expressly waived, shall be required in connection with (i) any redemption by the Operating Partnership of any Collateral in accordance with the Operating Partnership Agreement or (ii) any sale or other disposition of any part of the Collateral which threatens to decline speedily in value or which is of a type customarily sold on a recognized market. Except as set forth in the preceding sentence, the Pledgee shall give the Pledgors at least ten days' prior notice of the time and place of any public sale and of the time after which any private sale or other disposition is to be made, which notice the Pledgors agree is reasonable, all other demands, advertisements and notices being hereby waived. The Pledgee shall not be obligated to make any sale of Collateral if it shall determine not to do so, regardless of the fact that notice of sale may have been given. The Pledgee 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 sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each private sale of Collateral of a type customarily sold in a recognized market and upon each public sale, the REIT, the Operating Partnership or any other Covered Party may purchase all or any of the Collateral being sold, free from any equity or right of redemption, which is hereby waived and released, and may make payment therefor by release or discharge of the Secured Obligations in lieu of cash payment, and may, upon compliance with the terms of sale, hold, retain and dispose of such Collateral without further accountability therefor. In the case of all sales of Collateral, public or private, the whole Pledgee may deduct from the proceeds of sale all costs and expenses of every kind for sale or delivery, including brokers' and attorneys' fees, and the Pledgee shall apply any balance of the proceeds of sale to the payment of the Secured Obligations. Recourse against the Pledgors is limited to the rights of the Pledgors in the Collateral and the Pledgors shall not be liable for any deficiency in the proceeds of sale of the Collateral to the payment of the Secured Obligations. If any proceeds of sale remain after payment in full of such costs and expenses and all of the Secured Obligations, they shall be held by the Pledgee as additional Collateral hereunder, subject to any duty of the Pledgee imposed by law to the holder of any subordinate security interest in the Collateral known to the Pledgee.
(c) For purposes of this Section 11, an agreement to sell all or any part of the Collateral or otherwise shall be treated as a sale thereof and the Pledgee shall be free to transfer or assign the samecarry out such sale pursuant to such agreement, applying the proceeds therefrom and no Pledgor shall be entitled to the payment return of any of the Borrower's obligations under this Agreementsame subject thereto, and (v) otherwise to act with respect to notwithstanding that after the Collateral or the proceeds thereof as though the Lender were the outright owner thereof, the Borrower hereby irrevocably constituting the Lender as its proxy and attorney-in-fact, with full power of substitution to do so. The Borrower and the Lender hereby agree that, if an Event of Default Pledgee shall have occurred prior to the completion of a public offering of common stock of the Lender entered into such an agreement, all Secured Obligations may have been paid and the Lender has determined to accept the KMOC Stock as payment for the principal and interest outstanding on the Loan, each share of KMOC Stock shall be valued, solely for determining the number of shares to be paid pursuant to this Section 2.3(a), (i) at U.S.$520.00 or (ii) at the option of the Lender, at the appraised value of such shares as determined by a nationally accepted accounting firm; provided, however, that the value of each share of KMOC Stock determined pursuant to clause (i) shall be adjusted as appropriate for any stock splits, combinations and dividends or other distributions consisting of, or payable in, shares of common stock of the Lender. Notwithstanding the foregoing, following the completion of an initial public offering of the Lender's common stock, the common stock of the Lender shall be valued at the market price listed for such shares on the public exchange on which such shares are tradedperformed in full.
(bd) The Borrower agrees Each Pledgor recognizes that it will not at any time pleadthe Pledgee may be unable to effect a public sale of all or a part of the Collateral by reason of certain prohibitions contained in the Securities Act of 1933, claim or take the benefit of any appraisalas amended, valuation, stay, extension, moratorium or redemption law as now or hereafter in force in order to prevent or delay the enforcement of this Agreementeffect, or the absolute sale of the whole in applicable Blue Sky or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder. and the Borrower waives the benefit of all such laws to the extent it lawfully may do so. The Borrower agrees that it will not interfere with any rightother state securities laws, power and remedy of the Lender provided for in this Agreement or as now or hereafter in effect, but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor agrees that private sales so made may be at prices and other terms less favorable to the seller than if such Collateral were sold at public sales, and that the Pledgee has no obligation to delay sale of any such Collateral for the period of time necessary to permit the issuer of such Collateral, even if such issuer would agree, to register such Collateral for public sale under such applicable securities laws. Each Pledgor agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(e) The remedies provided herein in favor of the Pledgee shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in favor of the Pledgee existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Lender of equity.
(f) The Pledgee shall not have any one or more such rights, powers or remedies. No failure or delay on the part of the Lender duty to exercise any such rightof the rights, power privileges, options or remedypowers or to sell or otherwise realize upon any of the Collateral, as herein authorized, and no notice the Pledgee shall not be responsible for any failure to do so or demand which may be given to or made upon the Borrower by the Lender with respect to any such remedies, shall operate as a waiver thereof, or limit or impair the Lender's right to take any action or to exercise any power or remedy hereunder without notice or demand, or prejudice its rights as against the Borrower delay in any respectso doing.
Appears in 1 contract
