Rights Against Collateral. Upon the occurrence of any Event of Default, Lender may, without notice or demand, do any one or more of the following, all of which are authorized by Borrower, and all of which Borrower agrees are commercially reasonable: (a) Lender may proceed directly against Borrower to collect the Obligations without prior recourse to any of the Collateral. (b) Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties, and Lender shall have the right to take immediate possession of the Collateral and may enter any of the premises of Borrower or wherever the Collateral shall be located with or without process of law wherever the Collateral may be and to keep and store the same on said premises until sold, and if said premises be the property of Borrower, Borrower agrees not to charge Lender for storage thereof. Borrower and Lender agree that ten days’ notice to Borrower of any public or private sale or other disposition of Collateral shall be reasonable notice thereof, and any such public sale shall be at such location(s) as Lender shall designate in said notice. Lender shall have the right to bid at any such public sale on its own behalf. Out of proceeds arising from such sale, Lender shall retain all costs and charges, including attorneys’ fees for advice, counsel or other legal services or for pursuing, reclaiming, seeking to reclaim, taking, keeping, removing, storing and advertising the Collateral for sale, selling and any and all other charges and expenses in connection therewith and any prior liens thereon, and any balance shall be applied upon the Obligations of Borrower to Lender. Borrower shall remain liable to Lender for any deficiency. In the event of any surplus, such surplus shall be paid to Borrower or such other person as may be legally entitled thereto. If any of the Collateral is sold or leased by Lender upon credit terms or for future delivery, the Obligations shall not be reduced as a result thereof until payment in cash therefor is finally collected by Lender. In the event Lender institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, Borrower waives the posting of any bond which might otherwise be required. (c) Lender may enforce Borrower’s rights against any Account Debtor, secondary obligor or other obligor in respect of any of the Accounts. Without limiting the generality of the foregoing, Lender may at such time or times, (i) notify any or all Account Debtors, secondary obligors or other obligors in respect thereof that the Accounts have been assigned to Lender and that Lender has a security interest therein, and Lender may direct any or all Account Debtors, secondary obligors and other obligors to make payment of the Accounts directly to Lender, (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all receivables or other obligations included in the Collateral and thereby discharge or release the Account Debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any receivables or such other obligations, but without any duty to do so, and Lender shall not be liable for its failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto, and (iv) take whatever other action Lender may deem necessary or desirable for the protection of its interests. At Lender’s request, all invoices and statements sent to any Account Debtor shall state that the Accounts and such other obligations have been assigned to Lender and are payable directly and only to Lender and Borrower shall deliver to Lender such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as Lender may require. In the event any Account Debtor returns inventory when an Event of Default has occurred, Borrower shall, upon Lender’s request, hold the returned inventory in trust for Lender, segregate all returned inventory from all of its other property, dispose of the returned inventory solely according to Lender’s instructions, and not issue any credits, discounts or allowances with respect thereto without Lender’s prior written consent. (d) Lender shall not be required (i) to incur expenses to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to obtain third party consents for access to Collateral to be disposed of, or to obtain consents of any governmental authority or other third party for the collection or disposition of Collateral to be collected or disposed of, or (iii) to exercise collection remedies against Account Debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral. (e) Lender may (i) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (ii) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (iii) contact other persons, whether or not in the same business as Borrower for expressions of interest in acquiring all or any portion of the Collateral, (iv) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (v) dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (vi) dispose of assets in wholesale rather than retail markets, (vii) disclaim any warranties of title or like disposition warranties, (viii) purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the collection or disposition of Collateral, or (iv) to the extent deemed appropriate by Lender, obtain the services of other brokers, investment bankers, consultants and other professionals to assist Lender in the collection or disposition of any of the Collateral. (f) For the purpose of enabling Lender to exercise the rights and remedies hereunder, Borrower hereby grants to Lender, to the extent assignable, an irrevocable, non-exclusive license to use, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other intellectual property and general intangibles now owned or hereafter acquired by Borrower, wherever the same maybe located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof. (g) All expenses of protecting, storing, warehousing, insuring, handling and shipping the Collateral, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral or in respect of the sale thereof, shall be Expenses and if Borrower fails to promptly pay any thereof when due, Lender may, as its option, but shall not be required to, pay the same and charge Borrower’s account thereof. (h) Lender shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other person whomsoever, but the same shall be at Borrower’s sole risk.
Appears in 2 contracts
Samples: Loan and Security Agreement (Energy Focus, Inc/De), Loan and Security Agreement (Energy Focus, Inc/De)
Rights Against Collateral. Upon the occurrence of any Event of Default, Lender may, without notice or demand, do any one or more of the following, all of which are authorized by Borrower, and all of which Borrower agrees are commercially reasonable:
(a) Lender may proceed directly against Borrower to collect the Obligations without prior recourse to any of the Collateral.
(b) Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties, and Lender shall have the right to take immediate possession of the Collateral and may enter any of the premises of Borrower or wherever the Collateral shall be located with or without process of law wherever the Collateral may be and to keep and store the same on said premises until sold, and if said premises be the property of Borrower, Borrower agrees not to charge Lender for storage thereof. Borrower and Lender agree that ten days’ notice to Borrower of any public or private sale or other disposition of Collateral shall be reasonable notice thereof, and any such public sale shall be at such location(s) as Lender shall designate in said notice. Lender shall have the right to bid at any such public sale on its own behalf. Out of proceeds arising from such sale, Lender shall retain all costs and charges, including attorneys’ fees for advice, counsel or other legal services or for pursuing, reclaiming, seeking to reclaim, taking, keeping, removing, storing and advertising the Collateral for sale, selling and any and all other charges and expenses in connection therewith and any prior liens thereon, and any balance shall be applied upon the Obligations of Borrower to Lender. Borrower shall remain liable to Lender for any deficiency. In the event of any surplus, such surplus shall be paid to Borrower or such other person as may be legally entitled thereto. If any of the Collateral is sold or leased by Lender upon credit terms or for future delivery, the Obligations shall not be reduced as a result thereof until payment in cash therefor is finally collected by Lender. In the event Lender institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, Borrower waives the posting of any bond which might otherwise be required.
(c) Lender may enforce Borrower’s rights against any Account Debtor, secondary obligor or other obligor in respect of any of the Accounts. Without limiting the generality of the foregoing, Lender may at such time or times, (i) notify any or all Account Debtors, secondary obligors or other obligors in respect thereof that the Accounts have been assigned to Lender and that Lender has a security interest therein, and Lender may direct any or all Account Debtors, secondary obligors and other obligors to make payment of the Accounts directly to Lender, (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all receivables or other obligations included in the Collateral and thereby discharge or release the Account Debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any receivables or such other obligations, but without any duty to do so, and Lender shall not be liable for its failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto, and (iv) take whatever other action Lender may deem necessary or desirable for the protection of its interests. At Lender’s request, all invoices and statements sent to any Account Debtor shall state that the Accounts and such other obligations have been assigned to Lender and are payable directly and only to Lender and Borrower shall deliver to Lender such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as Lender may require. In the event Lender shall not be required (i) to incur expenses to exercise collection remedies against Account Debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any Account Debtor returns inventory when an Event of Default has occurred, Borrower shall, upon Lender’s request, hold the returned inventory in trust for Lender, segregate all returned inventory from all of its other property, dispose of the returned inventory solely according to Lender’s instructions, and not issue any credits, discounts or allowances with respect thereto without Lender’s prior written consentadverse claims against Collateral.
(d) Lender shall not be required (i) to incur expenses to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to obtain third party consents for access to Collateral to be disposed of, or to obtain consents of any governmental authority or other third party for the collection or disposition of Collateral to be collected or disposed of, or (iii) to exercise collection remedies against Account Debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral.
(e) Lender may (i) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (ii) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (iii) contact other persons, whether or not in the same business as Borrower for expressions of interest in acquiring all or any portion of the Collateral, (iv) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (v) dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (vi) dispose of assets in wholesale rather than retail markets, (vii) disclaim any warranties of title or like disposition warranties, (viii) purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the collection or disposition of Collateral, or (iv) to the extent deemed appropriate by Lender, obtain the services of other brokers, investment bankers, consultants and other professionals to assist Lender in the collection or disposition of any of the Collateral.
(f) For the purpose of enabling Lender to exercise the rights and remedies hereunder, Borrower hereby grants to Lender, to the extent assignable, an irrevocable, non-exclusive license to use, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other intellectual property and general intangibles now owned or hereafter acquired by Borrower, wherever the same maybe located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(g) All expenses of protecting, storing, warehousing, insuring, handling and shipping the Collateral, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral or in respect of the sale thereof, shall be Expenses and if Borrower fails to promptly pay any thereof when due, Lender may, as its option, but shall not be required to, pay the same and charge Borrower’s account thereof.
(h) Lender shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other person whomsoever, but the same shall be at Borrower’s sole risk.
(i) Lender may terminate the authority of Borrower to collect Collateral, including without limitation Accounts, at any time whereupon Lender is authorized, without further act, to notify any and all Account Debtors and other obligors to make payment thereon directly to Lender, and to take possession of all proceeds from the Collateral, and to take any action which Borrower might or could take to collect the Collateral, including without limitation the right to make any compromise, discharge, or extension. Upon request of Lender, Borrower shall execute and deliver to Lender a notice to Account Debtors and other obligors instructing such obligors to pay Lender. Borrower further agrees to execute and deliver to Lender, all other notices and similar documents requested by Lender to facilitate collection of the Collateral. All costs of collection of the Collateral, if any, including, without limitation, attorneys’ fees and legal expenses, shall be borne solely by Borrower, whether such costs are incurred by or for Borrower or Lender. Borrower agrees to deliver to Lender, if so requested, all books, records, and documents in Borrower’s possession or under its control as may relate to the Collateral or as may be helpful to facilitate such collection. Lender shall have no obligation to cause an attorney’s demand letter to be sent, to file any lawsuit, or to take any other legal action in collection of the Collateral. It is agreed that collection of the Collateral in a commercially reasonable manner does not require that any such legal action be taken.
(j) Borrower does hereby make, constitute, and appoint Lender and its designees as Borrower’s true and lawful attorney in fact, with full power of substitution, such power to be exercised only upon an Event of Default and in the following manner: (i) Lender may receive and open all mail addressed to Borrower and remove therefrom any payments of the Collateral, if any; (ii) Lender may cause mail relating to the Collateral to be delivered to a designated address of Lender where Lender may open all such mail and remove therefrom any payments of the Collateral; (iii) Lender may endorse Borrower’s name upon notes, checks, acceptances, drafts, money orders, or other forms of payment of the Collateral; (iv) Lender may settle or adjust disputes or claims in respect to the Collateral for amounts and upon such terms as Lender, in its sole discretion and in good faith, deems to be advisable, in such case crediting Borrower with only the proceeds received and collected by Lender after deduction of Lender’s costs, including, without limitation, reasonable attorneys’ fees and legal expenses; and (v) Lender may do any and all other things necessary or proper to carry out the intent of this Agreement and to perfect and protect the liens and rights of Lender created under this Loan and Security Agreement. This power of attorney is irrevocable and coupled with an interest.
(k) Lender shall have all the rights and remedies available under the UCC.
(l) Lender shall have the right to enter upon any premises where the Collateral or records relating thereto may be and take possession of the Collateral and such records.
(m) Upon request of Lender, Borrower shall, at the expense of Borrower, assemble the Collateral and records relating thereto at a place designated by Lender and tender the Collateral and such records to Lender.
(n) Lender may sell, lease or otherwise dispose of any or all of the Collateral and, after deducting the Liquidation Costs, apply the remainder to pay, or to hold as a reserve against, the obligations secured by this Loan and Security Agreement.
(o) Lender may credit bid at any UCC, bankruptcy, trustee or other sale, including, without limitation, any sale under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
(p) Borrower shall be liable for all deficiencies owing on any obligations secured by this Agreement after liquidation of the Collateral. Lender shall not have any obligation to clean-up or otherwise prepare any Collateral for sale, lease, or other disposition.
Appears in 1 contract
Rights Against Collateral. Upon the occurrence and during the continuance of any Event of Default, Lender may, without notice or demand, do any one or more of the following, all of which are authorized by Borrower, and all of which Borrower agrees are commercially reasonable:
(a) Lender may proceed directly against Borrower to collect the Obligations without prior recourse to any of the Collateral.
(b) Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties, and Lender shall have the right to take immediate possession of the Collateral and may enter any of the premises of Borrower or wherever the Collateral shall be located with or without process of law wherever the Collateral may be and to keep and store the same on said premises until sold, and if said premises be the property of Borrower, Borrower agrees not to charge Lender for storage thereof. Borrower and Lender agree that ten days’ notice to Borrower of any public or private sale or other disposition of Collateral shall be reasonable notice thereof, and any such public sale shall be at such location(s) as Lender shall designate in said notice. Lender shall have the right to bid at any such public sale on its own behalf. Out of proceeds arising from such sale, Lender shall retain all costs and charges, including attorneys’ fees for advice, counsel or other legal services or for pursuing, reclaiming, seeking to reclaim, taking, keeping, removing, storing and advertising the Collateral for sale, selling and any and all other charges and expenses in connection therewith and any prior liens thereon, and any balance shall be applied upon the Obligations of Borrower to Lender. Borrower shall remain liable to Lender for any deficiency. In the event of any surplus, such surplus shall be paid to Borrower or such other person as may be legally entitled thereto. If any of the Collateral is sold or leased by Lender upon credit terms or for future delivery, the Obligations shall not be reduced as a result thereof until payment in cash therefor is finally collected by Lender. In the event Lender institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, Borrower waives the posting of any bond which might otherwise be required.
(c) Lender may enforce Borrower’s rights against any Account Debtor, secondary obligor or other obligor in respect of any of the Accounts. Without limiting the generality of the foregoing, Lender may at such time or times, (i) notify any or all Account Debtors, secondary obligors or other obligors in respect thereof that the Accounts have been assigned to Lender and that Lender has a security interest therein, and Lender may direct any or all Account Debtors, secondary obligors and other obligors to make payment of the Accounts directly to Lender, (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all receivables or other obligations included in the Collateral and thereby discharge or release the Account Debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any receivables or such other obligations, but without any duty to do so, and Lender shall not be liable for its failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto, and (iv) take whatever other action Lender may deem necessary or desirable for the protection of its interests. At Lender’s request, all invoices and statements sent to any Account Debtor shall state that the Accounts and such other obligations have been assigned to Lender and are payable directly and only to Lender and Borrower shall deliver to Lender such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as Lender may require. In the event any Account Debtor returns inventory when an Event of Default has occurred, Borrower shall, upon Lender’s request, hold the returned inventory in trust for Lender, segregate all returned inventory from all of its other property, dispose of the returned inventory solely according to Lender’s instructions, and not issue any credits, discounts or allowances with respect thereto without Lender’s prior written consent.
(d) Lender shall not be required (i) to incur expenses to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to obtain third party consents for access to Collateral to be disposed of, or to obtain consents of any governmental authority or other third party for the collection or disposition of Collateral to be collected or disposed of, or (iii) to exercise collection remedies against Account Debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral.
(e) Lender may (i) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (ii) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (iii) contact other persons, whether or not in the same business as Borrower for expressions of interest in acquiring all or any portion of the Collateral, (iv) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (v) dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (vi) dispose of assets in wholesale rather than retail markets, (vii) disclaim any warranties of title or like disposition warranties, (viii) purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the collection or disposition of Collateral, or (iv) to the extent deemed appropriate by Lender, obtain the services of other brokers, investment bankers, consultants and other professionals to assist Lender in the collection or disposition of any of the Collateral.
(f) For the purpose of enabling Lender to exercise the rights and remedies hereunder, Borrower hereby grants to Lender, to the extent assignable, an irrevocable, non-exclusive license to use, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other intellectual property and general intangibles now owned or hereafter acquired by Borrower, wherever the same maybe located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(g) All expenses of protecting, storing, warehousing, insuring, handling and shipping the Collateral, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral or in respect of the sale thereof, shall be Expenses and if Borrower fails to promptly pay any thereof when due, Lender may, as its option, but shall not be required to, pay the same and charge Borrower’s account thereof.
(h) Lender shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other person whomsoever, but the same shall be at Borrower’s sole risk.
Appears in 1 contract
Samples: Loan and Security Agreement (Superior Drilling Products, Inc.)
Rights Against Collateral. Upon the occurrence of any Event of Default, Lender may, without notice or demand, do any one or more of the following, all of which are authorized by BorrowerBxxxxxxx, and all of which Borrower Bxxxxxxx agrees are commercially reasonable:
(a) Lender may proceed directly against Borrower to collect the Obligations without prior recourse to any of the Collateral.
(b) Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties, and Lender shall have the right to take immediate possession of the Collateral and may enter any of the premises of Borrower or wherever the Collateral shall be located with or without process of law wherever the Collateral may be and to keep and store the same on said premises until sold, and if said premises be the property of BorrowerBxxxxxxx, Borrower Bxxxxxxx agrees not to charge Lender Lxxxxx for storage thereof. Borrower and Lender agree that ten (10) days’ notice to Borrower of any public or private sale or other disposition of Collateral shall be reasonable notice thereof, and any such public sale shall be at such location(s) as Lender shall designate in said notice. Lender shall have the right to bid at any such public sale on its own behalf. Out of proceeds arising from such sale, Lender Lxxxxx shall retain all costs and charges, including attorneys’ fees for advice, counsel or other legal services or for pursuing, reclaiming, seeking to reclaim, taking, keeping, removing, storing and advertising the Collateral for sale, selling and any and all other charges and expenses in connection therewith and any prior liens thereon, and any balance shall be applied upon the Obligations of Borrower to Lender. Borrower shall remain liable to Lender for any deficiency. In the event of any surplus, such surplus shall be paid to Borrower or such other person as may be legally entitled thereto. If any of the Collateral is sold or leased by Lender upon credit terms or for future delivery, the Obligations shall not be reduced as a result thereof until payment in cash therefor is finally collected by LenderLxxxxx. In the event Lender institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, Borrower waives the posting of any bond which might otherwise be required.
(c) Lender may enforce BorrowerBxxxxxxx’s rights against any Account Debtor, secondary obligor or other obligor in respect of any of the Accounts. Without limiting the generality of the foregoing, Lender may at such time or times, (i) notify any or all Account Debtors, secondary obligors or other obligors in respect thereof that the Accounts have been assigned to Lender and that Lender has a security interest therein, and Lender may direct any or all Account Debtors, secondary obligors and other obligors to make payment of the Accounts directly to Lender, (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all receivables or other obligations included in the Collateral and thereby discharge or release the Account Debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any receivables or such other obligations, but without any duty to do so, and Lender shall not be liable for its failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto, and (iv) take whatever other action Lender may deem necessary or desirable for the protection of its interests. At Lender’s request, all invoices and statements sent to any Account Debtor shall state that the Accounts and such other obligations have been assigned to Lender and are payable directly and only to Lender and Borrower shall deliver to Lender such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as Lender may require. In the event any Account Debtor returns inventory Inventory when an Event of Default has occurred, Borrower shall, upon LenderLxxxxx’s request, hold the returned inventory Inventory in trust for Lender, segregate all returned inventory Inventory from all of its other property, dispose of the returned inventory Inventory solely according to LenderLxxxxx’s instructions, and not issue any credits, discounts or allowances with respect thereto without LenderLxxxxx’s prior written consent.
(d) Lender shall not be required (i) to incur expenses to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to obtain third party consents for access to Collateral to be disposed of, or to obtain consents of any governmental authority or other third party for the collection or disposition of Collateral to be collected or disposed of, or (iii) to exercise collection remedies against Account Debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral.
(e) Lender may (i) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (ii) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (iii) contact other persons, whether or not in the same business as Borrower for expressions of interest in acquiring all or any portion of the Collateral, (iv) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (v) dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (vi) dispose of assets in wholesale rather than retail markets, (vii) disclaim any warranties of title or like disposition warranties, (viii) purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the collection or disposition of Collateral, or (iv) to the extent deemed appropriate by LenderLxxxxx, obtain the services of other brokers, investment bankers, consultants and other professionals to assist Lender in the collection or disposition of any of the Collateral.
(f) For the purpose of enabling Lender to exercise the rights and remedies hereunder, Borrower hereby grants to Lender, to the extent assignable, an irrevocable, non-exclusive license to use, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other intellectual property and general intangibles now owned or hereafter acquired by Borrower, wherever the same maybe located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(g) All expenses of protecting, storing, warehousing, insuring, handling and shipping the Collateral, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral or in respect of the sale thereof, shall be Expenses and if Borrower fails to promptly pay any thereof when due, Lender may, as its option, but shall not be required to, pay the same and charge Borrower’s account thereof.
(h) Lender shall not be liable or responsible in any way for the safekeeping of any of the Collateral or for any loss or damage thereto or for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other person whomsoever, but the same shall be at Borrower’s sole risk.
Appears in 1 contract
