RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.
Appears in 2 contracts
Samples: Loan Agreement (Globalscape Inc), Loan and Security Agreement (Globalscape Inc)
RIGHTS AND REMEDIES ON DEFAULT. At In addition to all other rights, options and remedies granted to Lender under this Agreement or otherwise available at law or in equity, (each of which is also then exercisable by Lender's option), Lender may, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, exercise any other rights granted to it under the extent permitted UCC and any other applicable law, including, without limitation, the following rights and remedies:
(a) the right to take possession of, send notices, and collect directly the Collateral, with or without judicial process (including, without limitation the right to notify the United States postal authority to redirect all mail addressed to Guarantor to an address designated by applicable law Lender);
(ib) any amounts payable under this Agreement by its own means or under any Note shall thereafter bear interest at a rate per annum equal to with judicial assistance, enter Guarantor’s premises and take possession of the Interest Rate plus three percent (3%)Collateral, or render it unusable, or dispose of the maximum rate per annum allowed by lawCollateral on such premises without any liability for rent, whichever is lessstorage, compounded monthly utilities or other sums, and payable on demand Guarantor shall not resist or interfere with such action;
(both before and after judgment), until the Indebtedness is paid in full c) require Guarantor at Guarantor’s expense to assemble all or the Event any part of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which any place designated by Lender;
(d) In addition to all other rights granted to Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased herein or otherwise under the real available at law or apparent control of any Borrowerin equity, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sellfollowing rights, lease or otherwise dispose each of the Collateral which may be exercised at Lender’s sole discretion (or contract but without any obligation to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give time following the applicable Borrower reasonable notice occurrence of an Event of Default, without further consent of Guarantor: (i) transfer the whole or any part of the time and place Investment Property into the name of any public itself or its nominee or to conduct a sale of the collateral Investment Property pursuant to the UCC or pursuant to any other applicable law; (ii) vote the Investment Property; (iii) notify the persons obligated on any of the Investment Property to make payment to Lender of any amounts due or to become due thereon; and (iv) release, surrender or exchange any of the Investment Property at any time, or to compromise any dispute with respect to the same.
(e) Guarantor hereby authorizes and instructs each issuer of the Investment Property to comply with any instruction received by it from Lender in writing that states that an Event of Default has occurred and without any other or further instruction from Guarantor, and Guarantor agrees that each such issuer shall be fully protected in so complying. Guarantor hereby agrees that a notice received by it at least ten (10) days before the time of any intended public sale or of the time after which any private sale or other intended disposition of the Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition. Unless otherwise provided If permitted by applicable law, the requirement of reasonable notice shall any perishable inventory or Collateral which threatens to speedily decline in value or which is sold on a recognized market may be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition sold immediately by Lender without prior notice to Guarantor. Guarantor covenants and agrees not to interfere with or impose any obstacle to Lender’s exercise of any of the Collateral may be first applied by Lender its rights and remedies with respect to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to after the rights occurrence of Lender an Event of Default hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.
Appears in 2 contracts
Samples: Security Agreement (Nexaira Wireless Inc.), Security Agreement (Nexaira Wireless Inc.)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (ia) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after Upon the occurrence and during the continuance of an Event of Default Default, Noteholders holding greater than 50%, voting together as a single class, in principal amount of the Convertible Notes and Notes, as applicable, may, by notice to the Company, declare the entire unpaid principal amount of the Convertible Notes and/or Notes, as applicable, plus all interest accrued and unpaid thereon and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim amounts payable under this Agreement to be forthwith due and payable, whereupon the Convertible Notes or Notes, as applicable, all such accrued interest and all such amounts shall become and be forthwith due and payable (unless there shall have occurred an Event of Default under sub-sections 8.1.10 or .11, in which case all such amounts shall automatically become due and payable), without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company.
(b) In the case of an Event of Default under sub-sections 8.1.1 or .2, each Noteholder may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding either for specific performance of any covenant, provision or condition contained or incorporated by reference in this Agreement or in aid of the exercise of any power granted in this Agreement.
(c) In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Noteholders shall have accelerated the maturity of the Convertible Notes or Notes, as applicable, pursuant to sub-section 8.3(a), each Noteholder, if owed any amount with respect to the Convertible Notes or Notes, as applicable, may proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Subordinated Notes Documents or any instrument pursuant to which the Noteholder Obligations to such Noteholders are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other Loan Document legal or equitable right of such Noteholder. No remedy herein conferred upon any Noteholder is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in any court, it is necessary addition to convert a sum due every other remedy given hereunder or thereunder to the Lender now or hereafter existing at law or in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid equity or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement by statute or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender provision of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslaw.
Appears in 2 contracts
Samples: Note Purchase Agreement (Eagle Test Systems, Inc.), Note Purchase Agreement (Eagle Test Systems, Inc.)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon 9.1 Upon the occurrence of any such an Event of Default under Section 14Default, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, in addition to the extent permitted by applicable law (i) any amounts payable rights granted to Lender under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal other Loan Document, including any collateral agreement or other instrument evidencing, securing or otherwise relating to any of the Interest Rate plus three percent Indebtedness, Lender may exercise any one or more of the following rights and remedies:
(3%)a) Declare any and all Indebtedness to be immediately due and payable, and the same will thereupon become immediately due and payable without further notice or demand.
(b) In the name of Operator or otherwise, demand, collect, receive and receipt for, compound, compromise, settle and give acquittance for and prosecute and discontinue any suits or proceedings in respect of any or all of the Collateral Property.
(c) Take any action that Lender may deem necessary or desirable in order to realize on the Collateral Property, including the power to perform any contract, to endorse in the name of Operator any checks, drafts, notes, or other instruments or documents received in payment of or on account of the maximum rate per annum allowed Collateral Property.
(d) Enter upon and into and take possession of all or such part or parts of the Collateral Property as may be necessary or appropriate in the judgment of Lender, to permit or enable Lender to store, lease, sell or otherwise dispose of or collect all or any part of the Collateral Property, and use and operate said property for such purposes and for such length of time as Lender may deem necessary or appropriate for said purposes without the payment of any compensation to Operator therefor. Operator will provide Lender with all information and assistance requested by Xxxxxx to facilitate the storage, leasing, sale or other disposition or collection of the Collateral Property after an Event of Default.
(e) Exercise any and all other rights and remedies available to Lender by law, whichever is lessin equity or by agreement, compounded monthly including rights and payable on demand (both before remedies under the law of the Property Jurisdiction or any other applicable law as they relate to the Collateral Property and after judgment)including all remedies available to Lender under Article 9 of the Code of the Property Jurisdiction, until the Indebtedness is paid and, in full or the Event of Default is curedconnection therewith, (ii) it will, at Lenders request Lender may require Operator to assemble the Collateral Property and make it available to Lender at places which Lender shall reasonably selecta place to be designated by Lender, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process Notice of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral Property required by law will be deemed reasonable if such Notice is mailed or delivered to Operator pursuant to this Agreement at least 10 days before the date of such disposition. Lender may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale sell or otherwise dispose of any or all of the Collateral, Collateral Property in a single unit or in any way relating to the rights of multiple units and Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in purchaser at such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease sale or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for .
(f) Terminate the purposes of obtaining judgment in respect of any claim under this Agreement Operating Lease or exercise any other Loan Document in any court, it is necessary rights of Borrower under the Operating Lease as though a default of Operator had occurred under (and as defined in) the Operating Lease entitling Borrower to convert a sum due hereunder or thereunder terminate the Operating Lease pursuant to the Lender in any currency term thereof and applicable law.
(g) All proceeds of sale or disposition of the "Original Currency") into another currency (Collateral Property will be applied toward the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate Indebtedness of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due Borrower in such Other Currency, manner and order as Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerselect.
Appears in 2 contracts
Samples: Security, Assignment and Subordination Agreement for Operating Lease and Assignment of Leases and Rents, Security, Assignment and Subordination Agreement
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note Notes will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein)kind, all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Telscape and each Co-Borrower agrees agree that upon the occurrence that and during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note the Notes shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full (which payment of Indebtedness in the event of acceleration shall not be subject to any prepayment premium) or the Event of Default is cured, (ii) it will, at Lenders request Lender's request, assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent agent, may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of Telscape or any Co-Borrower, or any agent of any Co-Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Co-Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Co-Borrower reasonable notice of the time and place of any public sale of the collateral Collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower the Co-Borrowers and Telscape set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Co-Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to the Co-Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.
Appears in 2 contracts
Samples: Loan and Security Agreement (Telscape International Inc), Loan and Security Agreement (Telscape International Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such Event of Default specified in Sections 8.1(h), 8.1(i), or 8.1(j), the Commitment shall forthwith terminate and the Bank shall be relieved of all obligations to make Credit Advances and to issue L/Cs and the entire unpaid principal amount of all Loans then outstanding, all interest accrued and unpaid thereon and all other amounts payable under Section 14this Agreement, and all other Obligations of the Company, shall be forthwith due and payable, without any further notice or action by the Bank. Upon the occurrence of any other Event of Default and at any time thereafter, at Lender's optionunless the same is previously cured, Lender's commitment the Bank may:
(i) declare the unused portion of the Commitment terminated, whereupon the same and the obligation of the Bank to lend make Credit Advances and to issue L/Cs shall terminate and/or be thereupon terminated;
(ii) declare the entire unpaid principal amount of all unmatured Indebtedness evidenced by Loans then outstanding, all interest accrued and unpaid thereon and all other amounts payable under this Agreement, and all other Obligations of the Note will immediately Company, to be forthwith due and payable, whereupon the same shall become forthwith due and payable and the Commitment shall be terminated, without presentationpresentment, demand, protest, protest or notice of any kind (except as expressly provided for herein)kind, all of which are hereby expressly waivedwaived by the Company;
(iii) require the Company and its Subsidiaries to furnish the Bank with cash collateral for all outstanding L/Cs in an amount equal to one hundred five percent (105%) of the maximum undrawn amount thereof. Lender Such cash collateral may exercisebe immediately applied against any drawing under any such L/C without further notice to, from time or consent from, the Company or its Subsidiaries, and to timethe extent not utilized for such purpose, any shall secure, and may be applied against, the other Obligations.
(iv) exercise all rights and remedies available to it under this Agreementhereunder, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, Note and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in Documents, and under any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency other agreements with the Other Currency on Bank; and all other rights and remedies which the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender Bank may have under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowersapplicable law.
Appears in 1 contract
Samples: Credit Agreement (Designs Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, the Borrower shall be deemed to the extent permitted by applicable law (i) any amounts payable have defaulted under this Agreement or under any as well as the Note shall thereafter bear interest at a rate per annum equal and the Holder may, on written notice to the Interest Rate plus three percent (3%)Borrower, or the maximum rate per annum allowed by law, whichever is less, compounded monthly accelerate all payments due under this Note and payable on demand (both before seize and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble retain the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under Shares. In the real or apparent control of any Borrower, or any agent of any Borrower, where event the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to Holder takes possession of the Collateral after Shares from the occurrence and during Escrowee, the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right Holder's rights to sell, lease or otherwise dispose seek repayment of the Collateral (Loan Amount shall be limited to $60,000 or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, the difference between the Loan Amount and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice Parties estimate of the time and place of any public sale fair market value of the collateral or of Firm as a non-operating entity, which estimate is hereby agreed upon as fair and reasonable. In seeking redress against the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by lawLoan Amount, the requirement of reasonable notice Borrower shall be met if such notice is delivered pay to the address of such Borrower set forth above at least ten Holder, on demand, each cost and expense (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expensesincluding, including without limitation, reasonable attorneys' fees and legal expensesall costs of suit) incurred by the Holder in (a) collecting any of the outstanding principal of the Loan Amount, incurred any interest owing pursuant to this Agreement and/or the Note and remaining unpaid, or any other amount owing by the Borrower to the Holder pursuant to this Agreement and/or the Note and remaining unpaid or (b) preserving or exercising any right or remedy of the Holder pursuant to this Agreement and/or the Note. Failure or delay by the Holder in connection with the repossessionexercising, care, safekeeping, sale or otherwise a single or partial exercise of any power or all right hereunder, shall not operate as a waiver thereof or of the Collateralany other power or right or preclude any future exercise of that or any other power or right. A waiver of any power or right hereunder shall be in writing, or in any way relating shall be limited to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable forspecific instance, and shall pay to Lender on demandnot be deemed a waiver of such power or right in the future, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect a waiver of any claim under this Agreement other power or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowersright.
Appears in 1 contract
Samples: Loan Agreement (Logistics Management Resources Inc)
RIGHTS AND REMEDIES ON DEFAULT. (a) Debtor does hereby irrevocably appoint MDI its true and lawful attorney-in-fact and in its name, place and stead, if Debtor is then in default under any of its obligations to the Secured Parties, after any applicable grace periods and opportunity to cure, to enter into a lock-box agreement with a bank of MDI's choice, which will provide that all accounts of the Debtor shall be paid to the lock-box bank and that MDI shall have the right to elect to control the distribution of all funds received by the lock-box bank. At Lender's optionall times after MDI shall have elected to control the distribution of such funds, upon MDI shall account to the Debtor for all funds withdrawn from the lock box and the lock box bank shall provide reports to the Debtor of all funds coming into and out of the lock box, all not less often than monthly, and MDI shall also provide copies of deposits and the checkbook register on a weekly basis.
(b) Upon the occurrence of any such Event event of Default under Section 14default, and at any time thereafter, at Lender's option, Lender's commitment to lend the Secured Parties shall terminate and/or all unmatured Indebtedness evidenced by have the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available of a secured party under the Uniform Commercial Code in addition to it the rights and remedies provided herein. In addition, Debtor agrees to assist the Secured Parties to provide necessary information to payors or other third parties to assist Secured Parties in receiving payment on the Accounts Receivable of Debtor if the Secured Parties cannot access certain records due to limits of applicable law.
(c) At any time after an event of default (subject to all applicable rights to cure and grace periods), and after compliance with any notice requirements under this Agreement, any Noteif any, and at the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon expense of the occurrence that during Debtor, MDI, in its name or in the continuance name of an Event its nominee or of Defaultthe Debtor, subject to the extent permitted by applicable law Section 7(a), may but shall not be obligated to:
(i) any amounts collect by legal proceedings or otherwise all payments and interest due thereon, and other sums now or hereafter payable under this Agreement upon or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event account of Default is cured, said Collateral;
(ii) make any compromise or settlement it will, at Lenders request assemble deems desirable or proper with reference to the Collateral and make it available to Lender at places which Lender shall reasonably select, and Collateral;
(iii) Lenderdischarge taxes, by itself liens or any other encumbrances placed on the Collateral;
(iv) insure, process, preserve and maintain the Collateral;
(v) notify any other person of its agent mayrights under this Agreement;
(vi) renew, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrowerextend, or accelerate any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all Obligation or any item of the Collateral, disconnecting and separating the Collateral from part thereof; and
(vii) release or substitute any other property. Each Borrower expressly waives all further rights party to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral Obligations.
(d) Upon default (subject to all applicable rights to cure and grace periods), MDI, at its option, may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of declare any or all of the CollateralObligations immediately due and payable and, subject to Section 7(a), shall have all of the rights and remedies of a secured party as provided in the Uniform Commercial Code, including but not limited to the right to notify account debtors (including without limitation patients, third party payors and counsel) at Debtor's expense that the Collateral has been assigned to the Secured Parties and that payments shall be made directly to MDI or its nominee and upon request of MDI, Debtor will so notify such account debtors that their accounts must be paid to MDI or its nominee. Debtor will immediately upon receipt of all remittances deliver the same in kind to MDI. MDI shall have full power to collect, compromise, endorse, sell or otherwise deal with the Collateral or proceeds thereof in its own name or in the name of Debtor and Debtor hereby irrevocably appoints MDI its attorney-in-fact for this purpose. Pursuant to the foregoing paragraph, MDI as Debtor's attorney-in-fact may endorse the name of Debtor upon any assignments, notes, checks, drafts, money orders, or other instruments of payment or Collateral that may come into possession of the Secured Parties; may sign and endorse the name of Debtor upon any negotiable instrument, invoice, freight or express xxxx, xxxx of lading, storage or warehouse receipts, drafts, assignments, verifications and notices in connection with accounts, and any way instruments or documents relating thereto or to Debtor's rights therein; may give notice to the United States Post Office to effect changes of address to allow delivery of mail addressed to the Debtor to be accepted by the MDI or its nominee; or any other activity consistent with its rights of Lender hereunder. Any balance as a Secured Party in order to take possession of such proceeds may be applied by Lender toward the payment account receivable monies and with full power to do all things necessary regarding said account receivables as Debtor might or could do.
(e) All rights and remedies of the Indebtedness Secured Parties, whether provided for in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or in other instruments or documents covered by law, are cumulative and not alternative and may be enforced successively or concurrently. The Secured Parties shall not be deemed to have waived any other Loan Document of its rights unless such waiver be in any court, it is necessary to convert a sum due hereunder writing and signed by the Secured Parties. No delay or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency omission on the Business Day preceding that on which final judgment is paid or satisfied. The obligations part of Borrowers the Secured Parties in respect exercising any right shall operate as a waiver of any sum due in the Original Currency to the Lender under this Agreement such right or any other Loan Document shall, notwithstanding any judgment in any other Currency, right. A waiver on one occasion shall not be discharged only construed as a bar to the extent that on the business day following receipt by Lender or a waiver of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding right or remedy on any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowersfuture occasion.
Appears in 1 contract
Samples: Security Agreement (Caprius Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at LenderTrustee or Bank may exercise any one or more of the following rights and remedies:
(a) Bank may declare the entire Indebtedness, including the then unpaid principal balance on the Note, the accrued but unpaid interest thereon, court costs and attorney's optionfees
(b) Bank may enter upon the Property and take exclusive possession thereof and of all books, Lender's commitment records and accounts relating thereto without notice and without being guilty of trespass, and hold, lease, manage, operate or otherwise use or permit the use of the Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as Bank may deem to lend shall terminate and/or be prudent and reasonable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any and all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exerciseother action with reference thereto, from time to time, as Bank shall deem necessary or desirable), and apply all rents and other amounts collected by Bank in connection therewith in accordance with the provisions of subsection (h) of this Section 26. Borrower hereby irrevocably appoints Bank as the agent and attorney-in-fact of Borrower, with full power of substitution, and in the name of Borrower, if Bank elects to do so, to (i) endorse the name of Borrower on any rights checks or drafts representing proceeds of the insurance policies, or other checks or instruments payable to Borrower with respect to the Property, (ii) prosecute or defend any action or proceeding incident to the Property, and remedies available (iii) take any action with respect to the Property that Bank may at any time and from time to time deem necessary or appropriate. Bank shall have no obligation to undertake any of the foregoing actions, and if Bank should do so, it shall have no liability to Borrower for the sufficiency or adequacy of any such actions taken by Bank.
(c) Bank may, by or through the Trustee, or otherwise, sell or offer for sale the Property in such portions, order and parcels as Bank may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made in accordance with the laws of the State of Nebraska relating to the sale of real estate or by Chapter 9 of the Uniform Commercial Code relating to the sale of collateral after default by a debtor (as such laws now exist or may be hereafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same. With respect to any notices required or permitted under this Agreementthe Uniform Commercial Code, Borrower agrees that five days' prior written notice shall be deemed commercially reasonable. At any Notesuch sale (i) whether made under the power herein contained, the Uniform Commercial Code Code, any other legal requirement or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it shall not be necessary for Trustee to be physically present at, or to have constructive possession of, the Property (Borrower shall deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee immediately upon demand by Trustee), and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if Trustee had been actually present and delivered to purchaser at such sale, (ii) each instrument of conveyance executed by Trustee shall contain a general warranty of title, binding upon Borrower, (iii) each and every recital contained in any instrument of conveyance made by Trustee shall conclusively establish the truth and accuracy of the matters recited therein, including without limitation nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law, and appointment of any successor Trustee hereunder, (iv) any and all prerequisites to the validity of such sale shall be conclusively presumed to have been performed, (v) the receipt of Trustee or other party making the sale shall be a sufficient discharge to the purchaser or purchasers for his or their purchase money and no such purchaser or purchasers, or his or their assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof and (vi) to the fullest extent permitted by law, Borrower shall be completely and irrevocably divested of all of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Borrower, and against all other persons claiming or to claim the property sold or any part thereof, by, through or under Borrower. To the extent and under the circumstances as are permitted by law, Bank may be a purchaser at any such sale.
(d) After sale of the Property, or any portion thereof, Borrower will be divested of any and all interest and claim thereto, including any interest or claim to all insurance policies, bonds, loan commitments and other applicable intangible property covered hereby. Additionally, Borrower will be considered a tenant at sufferance of the purchaser of the Property, and said purchaser shall be entitled to immediate possession thereof, and if Borrower shall fail to vacate the Property immediately, the purchaser may and shall have the right, without further notice to Borrower, to go into any justice court in any precinct or county in which the Property is located and file an action in forcible entry and detainer, which action shall lie against Borrower or its assigns or legal representatives, as a tenant at sufferance. This remedy is cumulative of any and all remedies the purchaser may have hereunder or otherwise.
(i) Upon, or at any time after, commencement of foreclosure of the lien and security interest provided for herein or any legal proceedings hereunder, Bank may make application to a court of competent jurisdiction, as a matter of strict right and without notice to Borrower or regard to the adequacy of the Property for the repayment of the Indebtedness, for appointment of a receiver of the Property, and Borrower does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions of subsection (h) of this Section 26.
(ii) Bank may exercise any and all other rights, remedies and recourses granted under the Loan Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise.
(f) Trustee and Bank shall have all rights, remedies and recourses granted in the Loan Documents and available at law or equity and the same (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively or concurrently against Borrower, any guarantor of the Indebtedness or others obligated under the Note, or against the Property, or against any one or more of them at the sole discretion of Bank; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Borrower that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (iv) are intended to be, and shall be, nonexclusive.
(g) To the fullest extent permitted by law, Borrower hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to Borrower by any present or future laws exempting the Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment; (ii) all notices of any Event of Default (except as may be specifically provided for under the terms hereof), presentment, demand, notice of intent to accelerate, notice of acceleration and any other notice of Bank's or Trustee's election to exercise or the actual exercise of any right, remedy or recourse provided for under the Loan Documents; (iii) any right to appraisal or marshalling of assets or a sale in inverse order of alienation; (iv) the exemption of homestead; and (v) the administration of estates of decedents, or other matter to defeat, reduce or affect the right of Bank under the terms of this Instrument to sell the Property for the collection of the Indebtedness secured hereby (without any prior or different resort for collection) or the right of Bank, under the terms of this Instrument, to receive the payment of the Indebtedness out of the proceeds of sale of the Property in preference to every other person and claimant whatever (only reasonable expenses of such sale being first deducted).
(h) The proceeds of any sale of, and the rents, profits and other income generated by the holding, leasing, operating or other use of the Property, shall be applied by Bank (or the receiver, if one is appointed) to the extent that funds are so available therefrom in the following orders of priority: (i) first, to the payment of the costs and expenses of taking possession of the Property and of holding, using, leasing, maintaining, repairing, improving and selling the same, including, without limitation, (A) receiver's fees; (B) costs of advertisement; (C) attorneys' and accountants' fees; and (D) court costs; if any; (ii) second, to the payment of all amounts, other than the principal amount and accrued but unpaid interest on the Note which may be due to Bank under the Loan Documents, including all Indebtedness, together with interest thereon as provided therein, in such order and manner as Bank may determine; (iii) third, to the~ payment of the principal amount outstanding on the Note in such order and manner as Bank may determine and all other Indebtedness; (iv) fourth, to the payment of all accrued but unpaid interest due on the Note in such order and manner as Bank may determine; and (v) fifth, to Borrower. Each Borrower agrees that upon Borrower, any guarantor of the Indebtedness and any other party liable on the Indebtedness shall be liable for any deficiency remaining in the Indebtedness subsequent to any sale referenced in this subsection (h).
(i) Bank shall have the right to become the purchaser at any sale of the Property hereunder and shall have the right to be credited on the amount of its bid therefor all of the Indebtedness due and owing as of the date of such sale.
(j) If Bank shall accelerate the Indebtedness following the occurrence that during the continuance of an Event of Default, to any payments received by Bank following such acceleration, whether as the extent permitted result of voluntary payments made by applicable law (i) any amounts payable under this Agreement Borrower or under any Note shall thereafter bear interest at as a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item result of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or Property by Trustee, shall be deemed voluntary prepayments of the time after which any private sale or other intended disposition Note and accordingly, the prepayment fee required under the Note shall also be payable, subject to the terms of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above Note.
(k) The purchaser at least ten (10) days before the time of the any trustee's or foreclosure sale or disposition. Any proceeds of hereunder may disaffirm any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateraleasement granted, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such salerental, lease or other dispositioncontract made in violation of any provisions of this Instrument and may take immediate possession of the Property free from, and Lender agrees to remit to Borrowers any surplus resulting therefrom. Ifdespite the terms of, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgmentgrant of easement, jointly and severallyrental, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslease or other contract.
Appears in 1 contract
Samples: Deed of Trust (Professional Veterinary Products LTD /Mo/)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon (a) In the event of the occurrence of of, and during the continuance of, any such Event of Default under Section 14, and Default:
(i) the Agent shall at any time thereafterthereafter have the right, at Lender's optionitself or through any of its agents, Lender's commitment upon notice to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentationBorrower, demand, protest, as to any or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, Collateral (to the extent permitted it is permissible to do so in view of the rights of lessees or other obligors who may have the right to possession of certain Equipment) by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%)available judicial procedure, or the maximum rate per annum allowed by lawwithout judicial process, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event to take possession of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available without liability for trespass to Lender at places which Lender shall reasonably selectenter any, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may bebe located for the purpose of taking possession of or removing the Collateral, and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law;
(ii) without limiting the generality of the foregoing, the Borrower agrees that the Agent shall have the right (subject to any rights of lessees or other obligors mentioned in clause (i) above) to sell, lease, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess otherwise dispose of all or any item part of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights unrestricted right and license to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered throughuse, license to others, or loss caused byassign to them, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so)Software Systems, whether in its their then condition or after further preparation or processing, either at public or private salesale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions conditions, all as Lender, the Agent in its sole discretion, discretion may deem advisable. Lender , and it shall have the right to purchase at any such sale. Lender will give ; and, if any Collateral shall require refurbishing, repairing, maintenance, preparation, or is in process or other unfinished state, the applicable Agent shall have the right, at its option, to do such refurbishing, repairing, maintenance, preparation or processing, for the purpose of putting the Collateral in such salable or disposable form as it shall deem appropriate;
(iii) the Agent shall at any time thereafter have the right to require the Borrower reasonable notice to, and upon such demand the Borrower shall (A) cause each obligor under the Contracts to make all Contract Payments and all other payments relating to the Collateral directly to, in the Agent's sole discretion, either the Agent or to a post office box designated by the Agent to which only the Agent shall have access, (B) if the Borrower shall receive any Contract Payment or any other payment relating to any Equipment (including, without limitation, any proceeds of insurance with respect to Equipment), hold the amount of such payment relating to the Collateral in trust by the Borrower for the benefit of the Agent and shall not commingle such payment with any other moneys or assets of the Borrower, and (C) promptly turn over and remit to the Agent all sums thus received, in the identical form as received, with all such endorsements thereof as may be required, as contemplated by Section 8 hereof; in the event that the Borrower shall fail to notify the obligors to make payments to the Agent or to a post office designated by it, the Agent shall be entitled to do so, either in the name of the Borrower pursuant to its power of attorney in Section 11 hereof and in the Assignment of Leases, or in its own name; and
(iv) at the Agent's request, the Borrower shall (subject to any rights of lessees or other obligors mentioned in clause (i) above) assemble the Collateral and make available to the Agent at the Borrower's principal office or warehouse and make available to the Agent, without rent, all of the Borrower's premises and facilities for the purpose of the Agent's taking possession of, removing or putting the Collateral in salable or disposable form.
(b) The Borrower hereby agrees that a notice sent at least ten (10) days before the time and place of any intended public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of shall be reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or other disposition. Any .
(c) The proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expensescollection, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other dispositiondisposition of all or any part of the Collateral, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for of all proceeds of the purposes of obtaining judgment in respect enforcement of any claim Encumbrance and security interests created under this Agreement or any other Loan Document Document, together with any sums then held by the Agent as part of the Collateral, shall be applied in any court, it is necessary to convert a sum due hereunder or thereunder the following order of priority: FIRST: To the Agent an amount equal to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency")fees, costs and expenses incurred by, and all other amounts owed or payable to, the parties hereto agreeAgent and the Lenders through the date of such enforcement or sale, including reasonable compensation for and expenses of the Agent's and the Lenders' representatives and counsel payable under the terms of the Credit Agreement, and all charges, expenses, indemnities, liabilities and advances incurred or made by or payable to the fullest extent that they may effectively do soAgent and the Lenders in connection with such enforcement or sale provided for under the Credit Agreement, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any the other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.Documents;
Appears in 1 contract
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after 8.3.1 Upon the occurrence and during the continuance of an Event of Default Default, the Noteholders holding greater than fifty percent (50%), voting together as a single class, in principal amount of the Notes may, by notice to Borrower, declare the entire unpaid principal amount of the Notes plus all interest accrued and unpaid thereon and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such accrued interest and all such amounts shall become and be forthwith due and payable (unless there shall have occurred an Event of Default under sub-Sections (f) or (g) of Section 8.1, in which case all such amounts shall automatically become due and payable), without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower.
8.3.2 Upon the occurrence and during the continuance of an Event of Default, each Noteholder may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding either for specific performance of any covenant, provision or condition contained or incorporated by reference in this Agreement or in aid of the exercise of any power granted in this Agreement.
8.3.3 Upon the occurrence and during the continuance of an Event of Default, if any Convertible Subordinated Notes are outstanding on such date, the Noteholders may elect to convert such Notes in accordance with Section 2.2 hereof.
8.3.4 If any Event of Default shall have occurred and be continuing, and whether or not the Noteholders shall have accelerated the maturity of the Notes pursuant to sub-Section 8.3.1, each Noteholder, if owed any amount with respect to the Notes may proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Subordinated Notes Documents or any instrument pursuant to which the Obligations to such Noteholder are evidenced, including to the extent permitted by Applicable Law by obtaining the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, by proceeding to enforce the payment thereof or any other Loan Document legal or equitable right of such Noteholder. No remedy herein conferred upon any Noteholder is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in any court, it is necessary addition to convert a sum due every other remedy given hereunder or thereunder to the Lender now or hereafter existing at law or in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid equity or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement by statute or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender provision of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslaw.
Appears in 1 contract
Samples: Subordinated Convertible Note Purchase Agreement (Open Link Financial, Inc.)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option8.3.1. The Noteholders holding greater than fifty percent (50%), upon voting together as a single class, in principal amount of the occurrence Notes may, by notice to Borrower, declare the entire unpaid principal amount of any the Notes plus all interest accrued and unpaid thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such accrued interest and all such amounts shall become and be forthwith due and payable (unless there shall have occurred an Event of Default under Section 14sub-Sections 8.1.9, and at any time thereafter8.1.10, at Lender's optionor 8.1.11, Lender's commitment to lend in which case all such amounts shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately automatically become due and payable payable), without presentationpresentment, demand, protest, protest or further notice of any kind (except as expressly provided for herein)kind, all of which are hereby expressly waivedwaived by Borrower.
8.3.2. Lender In the case of events of default under Section 8.1, each Noteholder may exerciseproceed to protect and enforce its rights by suit in equity, from time to timeaction at law and/or other appropriate proceeding either for specific performance of any covenant, provision or condition contained or incorporated by reference in this Agreement or in aid of the exercise of any rights and remedies available to it under power granted in this Agreement.
8.3.3. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Noteholders shall have accelerated the maturity of the Notes pursuant to sub-Section 8.3.1, each Noteholder, if owed any Noteamount with respect to the Notes may proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the Uniform Commercial Code specific performance of any covenant or agreement contained in this Agreement and the other applicable law. Each Borrower agrees that upon Subordinated Notes Documents or any instrument pursuant to which the occurrence that during the continuance of an Event of DefaultObligations to such Noteholder are evidenced, including to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note by obtaining the ex parte appointment of a receiver, and, if such amount shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lenderhave become due, by itself declaration or its agent mayotherwise, without notice by proceeding to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to enforce the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement thereof or any other Loan Document legal or equitable right of such Noteholder. No remedy herein conferred upon any Noteholder is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in any court, it is necessary addition to convert a sum due every other remedy given hereunder or thereunder to the Lender now or hereafter existing at law or in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid equity or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement by statute or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender provision of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslaw.
Appears in 1 contract
Samples: Subordinated Convertible Note Purchase Agreement (Clayton Holdings Inc)
RIGHTS AND REMEDIES ON DEFAULT. (a) At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, ---------- Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the any Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that and during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%) (in lieu of the 1-1/2% per month referenced in Section 3(f) hereof), or the maximum rate per annum allowed ------------- by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request Lender's request, assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent agent, may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. .
(b) Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral Collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expensesLender's Expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers Borrower shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers Borrower any surplus resulting therefrom. .
(c) If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. .
(d) The obligations of Borrowers Borrower in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers Borrower shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to BorrowersBorrower.
(e) Notwithstanding the foregoing, Lender shall not exercise any remedy in violation of applicable law in the jurisdiction where such remedy is exercisable.
Appears in 1 contract
Samples: Loan and Security Agreement (Primus Telecommunications Group Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at LenderLender may exercise any one or more of the following rights and remedies:
(a) Lender may declare the entire Indebtedness, including the then unpaid principal balance on the Loan Agreements, the accrued but unpaid interest thereon, court costs and attorney's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will fees hereunder immediately become due and payable payable, without presentationnotice, demandpresentment, protest, demand or notice action of any kind nature whatsoever (except as each of which hereby is expressly provided for hereinwaived by Borrower), all whereupon the same shall become immediately due and payable. Additionally, Lender shall not be required to make any further advances on the Loan Agreements or other Loan Documents upon the occurrence of which are expressly waived. an Event of Default or an event which, with the giving of notice or passing of time, would constitute an Event of Default.
(b) Lender may exerciseenter upon the Property and take exclusive possession thereof in accordance with applicable law and of all books, records and accounts relating thereto without notice and without being guilty of trespass, and hold, lease, manage, operate or otherwise use or permit the use of the Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as Lender may deem to be prudent and reasonable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any and all other action with reference thereto, from time to time, as Lender shall deem necessary or desirable), and apply all rents and other amounts collected by Lender in connection therewith in accordance with the provisions of subsection (i) of this Section 23. Borrower hereby irrevocably appoints Lender as the agent and attorney-in-fact of Borrower, with full power of substitution, and in the name of Borrower, if Lender elects to do so, to (i) endorse the name of Borrower on any checks or drafts representing proceeds of the insurance policies, or other checks or instruments payable to Borrower with respect to the Property, (ii) prosecute or defend any action or proceeding incident to the Property, and (iii) take any action with respect to the Property that Lender may at any time and from time to time deem necessary or appropriate. Lender shall have no obligation to undertake any of the foregoing actions, and if Lender should do so, it shall have no liability to Borrower for the sufficiency or adequacy of any such actions taken by Lender.
(c) Institute proceedings for the complete foreclosure of this Instrument in accordance with applicable law, in which case the Property may be sold for cash or credit in one or more parcels. With respect to any notices required or permitted under the Uniform Commercial Code, Borrower agrees that five (5) days' prior written notice shall be deemed commercially reasonable. At any such sale by virtue of any judicial proceedings or any other legal right, remedy or recourse, the title to and right of possession of any such property shall pass to the purchaser thereof, and to the fullest extent permitted by law, Borrower shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Borrower, and against all other persons claiming or to claim the property sold or any part thereof, by, through or under Borrower.
(d) After sale of the Property, or any portion thereof, Borrower will be divested of any and all interest and claim thereto, including any interest or claim to all insurance policies, bonds, loan commitments and other intangible property covered hereby. Additionally, Borrower will be considered a tenant at sufferance of the purchaser of the Property, and said purchaser shall be entitled to immediate possession thereof, and if Borrower shall fail to vacate the Property immediately, the purchaser may and shall have the right, without further notice to Borrower, to go into any justice court in any precinct or county in which the Property is located and file an action in forcible entry and detainer, which action shall lie against Borrower or its assigns or legal representatives, as a tenant at sufferance. This remedy is cumulative of any and all remedies the purchaser may have hereunder or otherwise.
(e) Lender shall have the right to have a receiver appointed, without regard to the solvency or insolvency of Borrower or waste or adequacy of security of the Property, the receiver shall have all of the rights and remedies available powers provided by statute, to it take possession of any or all of the Property, to operate the Property preceding foreclosure or sale, to collect all the rents and revenues from the Property and apply the proceeds, over and above cost of the receivership including reasonable attorneys' fees, against the sums due under this AgreementInstrument, and to exercise all of the rights with respect to the Property described in Section 21 above. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not apparent value of the Property exceeds the sums due under this Instrument by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.
(f) Lender may exercise any Noteand all other rights, remedies and recourses granted under the Loan Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise.
(g) Lender shall have all rights, remedies and recourses granted in the Loan Documents and available at law or equity (including specifically those granted by the Uniform Commercial Code in effect and applicable to the Property or any portion thereof) and the same (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively or concurrently against Borrower, any guarantor of the Indebtedness or others obligated under the Loan Agreements, or against the Property, or against any one or more of them at the sole discretion of Lender; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Borrower that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (iv) are intended to be, and shall be, nonexclusive.
(h) To the fullest extent permitted by law, Borrower hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to Borrower by any present or future laws exempting the Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment; (ii) all notices of any Event of Default (except as may be specifically provided for under the terms hereof), presentment, demand, notice of intent to accelerate, notice of acceleration and any other notice of Lender's election to exercise or the actual exercise of any right, remedy or recourse provided for under the Loan Documents; (iii) any right to appraisal or marshalling of assets or a sale in inverse order of alienation; (iv) the exemption of homestead; and (v) the administration of estates of decedents, or other matter to defeat, reduce or affect the right of Lender under the terms of this Instrument to sell the Property for the collection of the Indebtedness secured hereby (without any prior or different resort for collection) or the right of Lender, under the terms of this Instrument, to receive the payment of the Indebtedness out of the proceeds of sale of the Property in preference to every other person and claimant whatever (only reasonable expenses of such sale being first deducted).
(i) The proceeds of any sale of, and the rents, profits and other applicable lawincome generated by the holding, leasing, operating or other use of the Property, shall be applied by Lender (or the receiver, if one is appointed) to the extent that funds are so available therefrom in the following orders of priority: (i) first, to the payment of the costs and expenses of taking possession of the Property and of holding, using, leasing, maintaining, repairing, improving and selling the same, including, without limitation, (A) receiver's fees; (B) costs of advertisement; (C) attorneys' and accountants' fees; and (D) court costs; if any; (ii) second, to the payment of all amounts, other than the principal amount and accrued but unpaid interest on the Loan Agreements which may be due to Lender under the Loan Documents, including all Indebtedness, together with interest thereon as provided therein, in such order and manner as Lender may determine; (iii) third, to the payment of the principal amount outstanding on the Loan Agreements in such order and manner as Lender may determine and all other Indebtedness; (iv) fourth, to the payment of all accrued but unpaid interest due on the Loan Agreements in such order and manner as Lender may determine; and (v) fifth, to Borrower. Each Borrower agrees that upon Borrower, any guarantor of the Indebtedness and any other party liable on the Indebtedness shall be liable for any deficiency remaining in the Indebtedness subsequent to any sale referenced in this subsection (i).
(j) Lender shall have the right to become the purchaser at any sale of the Property hereunder and shall have the right to be credited on the amount of its bid therefor all of the Indebtedness due and owing as of the date of such sale.
(k) If Lender shall accelerate the Indebtedness following the occurrence that during the continuance of an Event of Default, to any payments received by Lender following such acceleration, whether as the extent permitted result of voluntary payments made by applicable law (i) any amounts payable under this Agreement Borrower or under any Note shall thereafter bear interest at as a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item result of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral or Property, shall be deemed voluntary prepayments of the time after which any private sale or other intended disposition Loan Agreements and accordingly, the prepayment fee required under the Loan Agreements shall also be payable, subject to the terms of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above Loan Agreements.
(l) The purchaser at least ten (10) days before the time of the any foreclosure sale or disposition. Any proceeds of hereunder may disaffirm any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateralsubordinate easement granted, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such salerental, lease or other dispositioncontract made in violation of any provisions of this Instrument and may take immediate possession of the Property free from, and Lender agrees to remit to Borrowers any surplus resulting therefrom. Ifdespite the terms of, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgmentgrant of easement, jointly and severallyrental, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslease or other contract.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (Westerbeke Corp)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option(a) In addition to all other rights, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights options and remedies granted or available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable Lender under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%)Loan Documents, or the maximum rate per annum allowed by lawotherwise available at law or in equity, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full upon or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral time after the occurrence and during the continuance of an Event of Default or Unmatured Event of Default, Lender may, in its reasonable discretion, withhold or cease making Advances.
(b) In addition to all other rights, options and remedies granted or available to Lender under this Agreement or the Loan Documents (each of which is also then exercisable by Lender), Lender may, in its reasonable discretion, upon or at any time after the occurrence and during the continuance of an Event of Default, terminate the Revolving Credit Facility and Term Loan Facility.
(c) In addition to all claims for injuries suffered throughother rights, options and remedies granted or loss caused byavailable to Lender under this Agreement or the Loan Documents (each of which is also then exercisable by Lender), Lender may, upon or at any time after the occurrence and during the continuance of an Event of Default, exercise all rights under the Uniform Commercial Code and any other applicable law or in equity, and under all Loan Documents permitted to be exercised after the occurrence of an Event of Default, including the following rights and remedies (which list is given by way of example and is not intended to be an exhaustive list of all such entering and/or repossession. Lender shall have the rights and remedies):
(i) The right to sell, lease or otherwise dispose “take possession” of the Collateral (or contract Collateral, and notify all Account Debtors of Lender’s security interest in the Accounts and require payment under the Accounts to do so)be made directly to Lender and Lender may, whether in its then condition or after further preparation or processing, either at public or private sale, in lots own name or in bulkthe name of the Borrowers, exercise all rights of a secured party with respect to the Collateral and collect, xxx for cash or for credit, with or without warranties or representationsand receive payment on all Accounts, and upon such settle, compromise and adjust the same on any terms and conditions as may be satisfactory to Lender, in its sole discretionreasonable discretion for any reason or without reason and Lender may do all of the foregoing with or without judicial process (including, may deem advisable. Lender shall have without limitation, notifying the United States postal authorities to redirect mail addressed to Borrowers, to an address designated by Lender); or
(ii) Require Borrowers, at Borrowers’ expense, to assemble all or any part of the Collateral and make it available to Lender; or
(iii) The right to purchase reduce or modify the Revolving Credit Commitment or Term Loan Commitment, or to modify the terms and conditions upon which Lender may be willing to consider making Advances.
(d) Borrowers hereby agree that a notice received by them at any such sale. Lender will give the applicable Borrower reasonable notice of least ten (10) days before the time and place of any intended public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of shall be deemed to be reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition. If permitted by applicable law, any Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Lender without prior notice to Borrowers. Borrowers covenant and Lender agrees agree not to remit interfere with or impose any obstacle to Borrowers any surplus resulting therefrom. If, for the purposes Lender’s exercise of obtaining judgment in its rights and remedies with respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to BorrowersCollateral.
Appears in 1 contract
Samples: Credit Agreement (Green Plains Renewable Energy, Inc.)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of If any such Event of Default occurs and is continuing, Mortgagee may, at its option, but subject in all respects to the rights of the Agent and the Senior Lenders under Section 14the Senior Loan Agreement, the Senior Security Documents and the Subordination Agreement, do any one or more of the following:
4.01 Declare the Secured Obligations, all indebtedness arising under the Secured Obligations, and at any time thereafterall other indebtedness of Owner to Mortgagee, at Lender's optionin principal and interest, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become forthwith due and payable without presentationpayable.
4.02 Enforce Mortgagee’s rights by an action at law, demandsuit in equity or other appropriate proceeding, protestwhether for the specific performance of, or notice for an injunction against a violation of, the Secured Obligations, including any term hereof, or of any kind loan agreement, credit agreement, note, mortgage, assignment, security agreement, guaranty or other instrument or agreement executed or endorsed by Owner in favor of Mortgagee (except as expressly provided for herein)including, all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Notewithout limitation, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Loan Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%referenced above), or in the maximum rate per annum allowed aid of the exercise of any power granted by this Mortgage, any said loan agreement, note, mortgage, assignment, security agreement, instrument or agreement, or by law.
4.03 Without being responsible for loss or damage, whichever is less, compounded monthly take and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into possession of the Vessels at any premises or upon any land ownedtime, leased or otherwise under wherever the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral same may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all without legal process (Owner or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to Person in possession of the Collateral Vessels shall forthwith, upon demand of Mortgagee, assemble and surrender possession thereof to Mortgagee), and, after the occurrence making any repairs deemed necessary by Mortgagee, and during the continuance of an Event of Default and all claims for injuries suffered throughcompleting other commercially reasonable preparations (a) hold, or loss caused bylay up, such entering and/or repossession. Lender shall have the right to selllease, lease charter, operate or otherwise dispose of use the Collateral Vessels for such time and upon such terms as Mortgagee may deem to be for its best advantage, and/or (or contract to do so)b) sell the Vessels, whether in its then condition or after further preparation or processing, either at by public or private sale, in lots together or in bulkseparately, for cash or for credit, with or without warranties or representationsat any place and at such time as Mortgagee may specify, and upon in such terms and conditions manner as Lender, in its sole discretion, Mortgagee may deem advisable. Lender shall have the right to purchase , free from any claim by Owner in admiralty, in equity, at any such sale. Lender will give the applicable Borrower reasonable law or by statute, after first giving Owner notice thereof ten (10) days in advance of the time and place of any public sale sale.
4.04 Demand, collect, receive, retain, receipt, compromise and xxx for, in the name of the collateral Mortgagee or of the time after which any private sale Owner all earned freights, charter hire, accounts, issues, revenues, income, profits or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateralearnings arising out of, or in any way relating to connected with, the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment use or operation of the Indebtedness in such order as LenderVessels.
4.05 Exercise all of the rights, in its sole discretion, shall determine. The Borrowers shall be liable forprivileges and remedies of foreclosure, and shall pay otherwise, given to Lender on demandMortgagee: (a) by this Mortgage and by any other instrument evidencing or securing the Secured Obligations, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for (b) under the purposes laws of obtaining judgment in respect the United States of any claim under this Agreement America or any other Loan Document jurisdiction where the Vessels may be found, including, but not limited to, all rights and remedies granted to mortgagees or secured parties under Chapter 313 of Title 46, United States Code, and under the Uniform Commercial Code as in force in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowersjurisdiction.
Appears in 1 contract
RIGHTS AND REMEDIES ON DEFAULT. At Lender's optionUpon the occurrence of any Event of Default and at any time thereafter while such Event of Default continues, Trustee or GE CAPITAL may exercise any one or more of the following rights and remedies:
(a) GE CAPITAL may declare the entire Indebtedness, including the then unpaid principal balance on the Note, the accrued but unpaid interest thereon, court costs and attorneys' fees hereunder immediately due and payable, without notice, presentment, protest, demand or action of any nature whatsoever (each of which hereby is expressly waived by Borrower), whereupon the same shall become immediately due and payable. Additionally, GE CAPITAL shall not be required to make any further advances on the Note or other Loan Documents upon the occurrence of any such an Event of Default under Section 14or an event which, with the giving of notice or passing of time or both, would constitute an Event of Default.
(b) GE CAPITAL may enter upon the Property and take exclusive possession thereof and of all books, records and accounts relating thereto without notice and without being guilty of trespass, and at hold, lease, manage, operate or otherwise use or permit the use of the Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as GE CAPITAL may deem to be prudent and reasonable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or and all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exerciseother action with reference thereto, from time to time, as GE CAPITAL shall deem necessary or desirable), and apply all rents and other amounts collected by GE CAPITAL in connection therewith in accordance with the provisions of subsection (h) of this Section 26. Borrower hereby irrevocably appoints GE CAPITAL as the agent and attorney-in-fact of Borrower, with full power of substitution, and in the name of Borrower, if GE CAPITAL elects to do so, to (i) endorse the name of Borrower on any rights checks or drafts representing proceeds of the insurance policies, or other checks or instruments payable to Borrower with respect to the Property, (ii) prosecute or defend any action or proceeding incident to the Property, and remedies available (iii) take any action with respect to the Property that GE CAPITAL may at any time and from time to time deem necessary or appropriate. GE CAPITAL shall have no obligation to undertake any of the foregoing actions, and if GE CAPITAL should do so, it shall have no liability to Borrower for the sufficiency or adequacy of any such actions taken by GE CAPITAL.
(i) GE CAPITAL may, by and through Trustee, or otherwise, sell or offer for sale the Property in such portions, order and parcels as GE CAPITAL may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction in accordance with the requirements of Section 51.002 of the Texas Property Code. In instances where the Property is located in the State of Texas, such sale shall be made at the courthouse of the county in which the Property (or any of that portion thereof to be sold) is located, whether the parts or parcels thereof, if any, in different counties are contiguous or not (and without the necessity of having any personal property present at such sale) in the area designated by the county commissioners for foreclosure sales (or, if no area has been designated, at the location at the courthouse designated by GE CAPITAL by or through Trustee in the written notice hereinafter described) on the first Tuesday of a month between the hours of 10:00 a.m. and 4:00 p.m. after advertising the time, place and terms of sale and that portion of the Property to be sold by posting or causing to be posted written or printed notice thereof at least twenty-one (21) days before the date of the sale both at the courthouse door of each county in which the Property is located and with the county clerk of each county in which the Property is located, which notice shall be posted at the courthouse door and filed with the county clerk by the Trustee, or by any person acting for him. The written notice shall include the earliest time at which the sale will be held. GE CAPITAL shall serve, or shall cause to be served at least twenty-one (21) days before the date of sale, written or printed notice of the proposed sale by certified mail on each debtor obligated to pay the Indebtedness according to the records of GE CAPITAL by the deposit of such notice in the United States mail, postage prepaid and addressed to each debtor at such debtor's last known address as shown by the records of GE CAPITAL. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.
(ii) GE CAPITAL, may, at its option, accomplish all or any of the aforesaid in such manner as permitted or required by Section 51.002 of the Texas Property Code relating to the sale of real property or by Chapter 9 of the Code relating to the sale of personalty after default by a debtor (as said section and chapter now exist or may be hereinafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same. At any such sale:
A. whether made under this Agreementthe power herein contained, the aforesaid Section 51.002, the Code, any Noteother legal requirement or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it shall not be necessary for Trustee to have physically present, or to have constructive possession of, the Uniform Commercial Code Property (Borrower shall deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee immediately upon demand by Trustee), and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the same had been actually present and delivered to purchaser at such sale;
B. each instrument of conveyance executed by Trustee shall contain a general warranty of title, binding upon Borrower, but subject to the Permitted Exceptions;
C. each and every recital contained in any instrument of conveyance made by Trustee shall conclusively establish the truth and accuracy of the matters recited therein, including, without limitation, nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law and appointment of any successor Trustee hereunder;
D. any and all prerequisites to the validity thereof shall be conclusively presumed to have been performed;
E. the receipt by Trustee or of such other applicable party or officer making the sale of the full amount of the purchase money shall be sufficient to discharge the purchaser or purchasers from any further obligation for the payment thereof, and no such purchaser or purchasers, or his or their assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof;
F. to the fullest extent permitted by law. Each , Borrower agrees that upon shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the occurrence that during property sold, and such sale shall be a perpetual bar, both at law and in equity, against Borrower and against all other persons claiming or to claim the continuance property sold or any part thereof by, through or under Borrower; and
G. to the extent and under such circumstances as are permitted by law, GE CAPITAL may be a purchaser at any such sale.
(d) After sale of an Event of Defaultthe Property, or any portion thereof, to the extent permitted by applicable law law, Borrower will be divested of any and all interest and claim thereto, including any interest or claim to all insurance policies, bonds, loan commitments and other intangible property covered hereby. Additionally, Borrower will be considered a tenant at sufferance of the purchaser of the Property, and said purchaser shall be entitled to immediate possession thereof, and if Borrower shall fail to vacate the Property immediately, the purchaser may and shall have the right, without further notice to Borrower, to go into any justice court in any precinct or county in which the Property is located and file an action in forcible entry and detainer, which action shall lie against Borrower or its assigns or legal representatives, as a tenant at sufferance. This remedy is cumulative of any and all remedies the purchaser may have hereunder or otherwise.
(i) Upon, or at any amounts payable under this Agreement time after, commencement of foreclosure of the lien and security interest provided for herein or under any Note shall thereafter bear interest at legal proceedings hereunder, GE CAPITAL may make application to a rate per annum equal court of competent jurisdiction, as a matter of strict right and without notice to Borrower or regard to the Interest Rate plus three percent adequacy of the Property, for the repayment of the Indebtedness, for appointment of a receiver of the Property, and Borrower does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms as may be approved by the court, and shall apply such rents in accordance with the provisions of subsection (3%)h) of this Section 26.
(ii) GE CAPITAL may exercise any and all other rights, remedies and recourses granted under the Loan Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise.
(f) Trustee and GE CAPITAL shall have all rights, remedies and recourses granted in the Loan Documents and available at law or equity (including specifically those granted by the Code in effect and applicable to the Property or any portion thereof) and the same (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively or concurrently against Borrower, any guarantor of the Indebtedness or others obligated under the Note, or against the maximum rate per annum allowed Property, or against anyone or more of them at the sole discretion of GE CAPITAL; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Borrower that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (iv) are intended to be, and shall be, nonexclusive.
(g) To the fullest extent permitted by law, whichever is lessBorrower hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to Borrower by any present or future laws exempting the Property from attachment, compounded monthly and payable levy or sale on demand execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment; (both before and after judgment), until the Indebtedness is paid in full or the ii) all notices of any Event of Default (except as may be specifically provided for under the terms hereof), presentment, demand, notice of intent to accelerate, notice of acceleration and any other notice of GE CAPITAL's or Trustee's election to exercise or the actual exercise of any right, remedy or recourse provided for under the Loan Documents; (iii) any right to appraisal or marshalling of assets or a sale in inverse order of alienation; (iv) the exemption of homestead; and (v) the administration of estates of decedents, or other matter to defeat, reduce or affect the right of GE CAPITAL under the terms of this Instrument to sell the Property for the collection of the Indebtedness secured hereby (without any prior or different resort for collection) or the right of GE CAPITAL, under the terms of this Instrument, to receive the payment of the Indebtedness out of the proceeds of sale of the Property in preference to every other person and claimant whatever (only reasonable expenses of such sale being first deducted). Borrower expressly waives and relinquishes any right or remedy which it may have or be able to assert by reason of the provisions of Chapter 34 of the Code pertaining to the rights and remedies of sureties.
(h) The proceeds of any sale of, and the rents, profits and other income generated by the holding, leasing, operating or other use of the Property, shall be applied by GE CAPITAL (or the receiver, if one is curedappointed) to the extent that funds are so available therefrom in the following orders of priority: (i) first, to the payment of the costs and expenses of taking possession of the Property and of holding, using, leasing, maintaining, repairing, improving and selling the same, including, without limitation, (A) receiver's fees; (B) costs of advertisement; (C) attorneys' and accountants' fees; and (D) court costs, if any; (ii) it willsecond, at Lenders request assemble to the Collateral payment of all amounts, other than the principal amount and make it available accrued but unpaid interest on the Note which may be due to Lender at places which Lender shall reasonably selectGE CAPITAL under the Loan Documents, including all Indebtedness, together with interest thereon as provided therein, in such order and manner as GE CAPITAL may determine; (iii) Lenderthird, by itself or its agent mayto the payment of the principal amount outstanding on the Note in such order and manner as GE CAPITAL may determine and all other Indebtedness; (iv) fourth, without notice to the payment of all accrued but unpaid interest due on the Note in such order and manner as GE CAPITAL may determine; and (v) fifth, to Borrower. Borrower, any guarantor of the Indebtedness and any other party liable on the Indebtedness shall be liable for any deficiency remaining in the Indebtedness subsequent to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender sale referenced in this subsection (h).
(i) GE CAPITAL shall have the right to sell, lease or otherwise dispose become the purchaser at any sale of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, Property hereunder and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any be credited on the amount of its bid therefor all of the Indebtedness due and owing as of the date of such sale. Lender will give .
(j) If GE CAPITAL shall accelerate the applicable Indebtedness following the occurrence of an Event of Default, any payments received by GE CAPITAL following such acceleration, whether as the result of voluntary payments made by Borrower reasonable notice or as a result of the time and place of any public sale of the collateral or Property by Trustee, shall be deemed voluntary prepayments of the time after which any private sale or other intended disposition Note and accordingly, the prepayment premium required under the Note shall also be payable, subject to the terms of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above Note.
(k) The purchaser at least ten (10) days before the time of the any trustee's or foreclosure sale or disposition. Any proceeds of hereunder may disaffirm any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateraleasement granted, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such salerental, lease or other dispositioncontract made in violation of any provisions of this Instrument and may take immediate possession of the Property free from, and Lender agrees to remit to Borrowers any surplus resulting therefrom. Ifdespite the terms of, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgmentgrant of easement, jointly and severallyrental, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerslease or other contract.
Appears in 1 contract
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment (a) In addition to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercisethe rights, from time to time, any rights options and remedies granted or available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable Agent or Lenders under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%)Loan Documents, or the maximum rate per annum allowed by lawotherwise available at law or in equity, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full upon or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral time after the occurrence and during the continuance of an Event of Default or Unmatured Event of Default, Agent shall cease and withhold making Advances under the Credit Facility until it receives the prior written direction from the SuperMajority Lenders to continue to make Advances. In addition, at all claims for injuries suffered throughtimes when the Collateral secures the Obligations, or loss caused byAgent may, such entering and/or repossession. Lender and the SuperMajority Lenders shall have the right to sellcause Agent to request, lease or otherwise dispose and Borrowers shall immediately deliver to Agent upon such request, all original counterparts of each Lease other than those in possession of the Collateral Lessees.
(b) In addition to all other rights, options and remedies granted or contract available to do soAgent under this Agreement or the Loan Documents (each of which is also then exercisable by Agent), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as LenderAgent may, in its sole discretion, may deem advisable. Lender and the SuperMajority Lenders shall have the right to purchase cause Agent to, upon or at any time after the occurrence and during the continuance of an Event of Default, to terminate the Credit Facility.
(c) In addition to all other rights, options and remedies granted or available to Agent under this Agreement or the Loan Documents (each of which is also then exercisable by Agent), Agent may, upon or at any time after the occurrence of an Event of Default which has not been expressly waived or excused, exercise all rights under the Uniform Commercial Code and any other applicable law or in equity, and under all Loan Documents permitted to be exercised after the occurrence of an Event of Default, including the following rights and remedies (which list is given by way of example and is not intended to be an exhaustive list of all such sale. Lender will give the applicable Borrower reasonable notice rights and remedies):
(i) The right to take possession, and notify all Lessees of the Agent's security interest in the Collateral (at all times when the Collateral secures the Obligations) and require payment under the Leases to be made directly to Agent for the benefit of Lenders and Agent may, in its own name or in the name of Borrower, collect, sue for and receive payment on all Leases, and settle, compromise axx adjust the same on any terms as may be satisfactory to Agent, in its sole and absolute discretion for any reason or without reason and Agent may do all of the foregoing with or without judicial process (including without limitation notifying the United States Postal Authorities to redirect mail addressed to any Borrower to an address designated by Agent); or
(ii) By its own means or with judicial assistance, subject to the rights of the Lessees, enter any Borrower's premises or location of Collateral and take possession of the Collateral, or render it unusable, or dispose of the Collateral on such premises in compliance with subsection (e) below, without any liability for rent, storage, utilities or other sums, and such Borrower shall not resist or interfere with such action; or
(iii) Require any Borrower at such Borrower's expense, subject to the rights of the Lessees, to assemble all or any part of the Collateral and make it available to Agent at any place designated by Agent; or
(iv) The right to reduce or modify the Maximum Credit Limit, Borrowing Base or any portion thereof or the advance rates or to modify the terms and conditions upon which Agent, on behalf of Lenders, may be willing to consider making Advances under the Credit Facility or to take additional reserves in the Borrowing Base for any reason; or
(d) Borrowers each hereby agree that a notice received by it at least ten (10) days before the time and place of any intended public sale of the collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition. Unless otherwise provided If permitted by applicable law, the requirement of reasonable notice shall be met if such notice any Collateral which threatens to speedily decline in value or which is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral sold on a recognized market may be first applied sold immediately by Lender Agent without prior notice to the payment any Borrower. Each Borrower covenants and agrees not to interfere with or impose any obstacle to Agent's exercise of expenses, including reasonable attorneys' fees its rights and legal expenses, incurred in connection remedies with the repossession, care, safekeeping, sale or otherwise of any or all of respect to the Collateral, or in any way relating to after the rights occurrence of Lender an Event of Default hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.
Appears in 1 contract
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such ------------------------------ Event of Default under Section 14, and at any time thereafter, at in addition to any other rights and remedies available to the Lender hereunder or otherwise, the Lender may exercise any one or more of the following rights and remedies (all of which shall be cumulative):
(a) Declare the entire unpaid principal amount of the Notes then outstanding, all interest accrued and unpaid thereon and all other amounts payable under this Agreement, and all other Indebtedness of the Borrower to the Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become be forthwith due and payable payable, whereupon the same shall become forthwith due and payable, without presentationpresentment, demand, protest, protest or notice of any kind (except as expressly provided for herein)kind, all of which are hereby expressly waived. Lender may exercise, from time to time, any waived by the Borrower.
(b) Terminate the Revolving Commitment hereunder.
(c) Exercise all of the rights and remedies available to it of a secured party under this Agreement, any Note, the Uniform Commercial Code Code. The Lender may enter upon the Premises and other applicable may take physical possession of the Collateral or render the Collateral unusable by process of law or peaceably without process of law. Each The Borrower agrees that shall peacefully and quietly yield up and surrender its Collateral and shall upon the occurrence that during request from the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) Lender assemble it will, at Lenders request assemble the Collateral and make it available to the Lender at a place or places designated by the Lender which is or are reasonably convenient to the Borrower and the Lender. The Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process may maintain possession of any kind, enter into Collateral on any premises or upon any land property owned, leased by or licensed to the Borrower or remove same or any part thereof to such place or places as the Lender may elect. The Borrower will also deliver to the Lender upon request all documents of title and other instruments relating to the Collateral. The Borrower waives all rights which it would otherwise have had under the real law to prohibit entry to any Premises or apparent control to require notice of any Borrowerreplevin or retaking, all to the extent that the same is permitted by law. The Lender may with only such demand, advertising or notice as may be required by law, sell and deliver any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims Collateral held by it for injuries suffered through, its account at any time or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease times in one or otherwise dispose of the Collateral (more private or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulksales, for cash or for creditcredit or otherwise, with or without warranties or representations, at such price and upon such terms and conditions as Lender, the Lender deems advisable in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place Notice of any public sale shall be sufficient if it describes the Collateral to be sold in general terms, stating the amounts thereof and the location and nature of the collateral or properties covered by the security interests and the prior liens thereon, and is published at least once, not less than seven (7) days prior to the sale, in any newspaper of general circulation in the time after which any private sale or other intended disposition locale of the Collateral is to be madesold which the Lender may elect. Unless otherwise provided by law, the requirement All requirements of reasonable notice shall be met if such notice is delivered sent to the address of such Borrower set forth above Borrower, in the manner provided in Section 14.03 below, at least ten seven (107) days before the time of the such sale or disposition. Any The Lender may be the purchaser at any such sale, if it is public, free from any right of redemption. The proceeds of sale shall be applied first to the costs of retaking, refurbishing, storing and selling any disposition by Lender Collateral hereunder and to other costs of any of the Collateral may be first applied by Lender collection, and then to the payment of expensesobligations of the Borrower to the Lender. The Lender shall be entitled to apply any collections on account of the Revolving Note first to fees, costs and charges accrued to the date of receipt, next to accrued interest and only thereafter to principal. Any excess shall be returned to the Borrower, and the Borrower shall remain liable for any deficiency.
(d) Enforce the provisions of this Agreement by legal proceedings for the specific performance of any covenant or agreement contained herein or for the enforcement of any other appropriate legal or equitable remedy, and the Lender may recover damages caused by any breach by the Borrower of the provisions of this Agreement, including court costs, reasonable attorneys' fees and legal expenses, other costs and expenses incurred in connection the enforcement of the obligations of the Borrower hereunder.
(e) Exercise all rights and remedies hereunder, under each of the Notes, the Security Instruments and under any other agreement with the repossession, care, safekeeping, sale or otherwise of any or Lender; and exercise all of the Collateral, or in any way relating to the other rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency remedies which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender have under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowersapplicable law.
Appears in 1 contract
Samples: Credit Agreement (Benthos Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon Upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's optionTrustee or Bank may exercise any one or more of the following rights and remedies:
(a) Bank may declare the entire Indebtedness, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by including the Note will then unpaid principal balance on the Notes, the accrued but unpaid interest thereon, court costs and attorney’s fees hereunder immediately become due and payable payable, without presentationnotice, demandpresentment, protest, demand or notice action of any kind nature whatsoever (except as each of which hereby is expressly provided for hereinwaived by Borrower), whereupon the same shall become immediately due and payable. Additionally, Bank shall not be required to make any further advances on the Notes or other Loan Documents upon the occurrence of an Event of Default or an event which, with the giving of notice or passing of time, would constitute an Event of Default.
(b) Bank may enter upon the Property and take exclusive possession thereof and of all books, records and accounts relating thereto without notice and without being guilty of which are expressly waived. Lender trespass, and hold, lease, manage, operate or otherwise use or permit the use of the Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as Bank may exercisedeem to be prudent and reasonable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any and all other action with reference thereto, from time to time, as Bank shall deem necessary or desirable), and apply all rents and other amounts collected by Bank in connection therewith in accordance with the provisions of subsection (h) of this Section 26. Borrower hereby irrevocably appoints Bank as the agent and attorney-in-fact of Borrower, with full power of substitution, and in the name of Borrower, if Bank elects to do so, to (i) endorse the name of Borrower on any rights checks or drafts representing proceeds of the insurance policies, or other checks or instruments payable to Borrower with respect to the Property, (ii) prosecute or defend any action or proceeding incident to the Property and remedies available (iii) take any action with respect to the Property that Bank may at any time and from time to time deem necessary or appropriate. Bank shall have no obligation to undertake any of the foregoing actions, and if Bank should do so, it shall have no liability to Borrower for the sufficiency or adequacy of any such actions taken by Bank.
(c) Bank may, by or through the Trustee, or otherwise, sell or offer for sale the Property in such portions, order and parcels as Bank may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made in accordance with the laws of the State of Nebraska relating to the sale of real estate or by Chapter 9 of the Uniform Commercial Code relating to the sale of collateral after default by a debtor (as such laws now exist or may be hereafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same. With respect to any notices required or permitted under this Agreementthe Uniform Commercial Code, Borrower agrees that five days’ prior written notice shall be deemed commercially reasonable. At any Notesuch sale (i) whether made under the power herein contained, the Uniform Commercial Code Code, any other legal requirement or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it shall not be necessary for Trustee to be physically present at, or to have constructive possession of, the Property (Borrower shall deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee immediately upon demand by Trustee), and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance title to and right of an Event possession of Default, any such property shall pass to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest purchaser thereof as completely as if Trustee had been actually present and delivered to purchaser at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is curedsuch sale, (ii) it willeach instrument of conveyance executed by Trustee shall contain a general warranty of title, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably selectbinding upon Borrower, and (iii) Lendereach and every recital contained in any instrument of conveyance made by Trustee shall conclusively establish the truth and accuracy of the matters recited therein, including without limitation nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by itself or its agent maylaw, without notice to any person and without judicial process appointment of any kindsuccessor Trustee hereunder, enter into (iv) any premises and all prerequisites to the validity of such sale shall be conclusively presumed to have been performed, (v) the receipt of Trustee or upon any land owned, leased other party making the sale shall be a sufficient discharge to the purchaser or otherwise under the real purchasers for his or apparent control of any Borrowertheir purchase money and no such purchaser or purchasers, or his or their assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any agent way answerable for any loss, misapplication or nonapplication thereof and (vi) to the fullest extent permitted by law, Borrower shall be completely and irrevocably divested of any Borrowerall of its right, where the Collateral may betitle, or where Lender believes the Collateral may beinterest, claim, equity, equity of redemption and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processingdemand whatsoever, either at public law or private salein equity, in lots or and to the property sold and such sale shall be a perpetual bar both at law and in bulk, for cash or for credit, with or without warranties or representationsequity against Borrower, and upon such terms against all other persons claiming or to claim the property sold or any part thereof, by, through or under Borrower. To the extent and conditions under the circumstances as Lenderare permitted by law, in its sole discretion, Bank may deem advisable. Lender shall have the right to purchase be a purchaser at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public .
(d) After sale of the collateral Property, or any portion thereof, Borrower will be divested of any and all interest and claim thereto, including any interest or claim to all insurance policies, bonds, loan commitments and other intangible property covered hereby. Additionally, Borrower will be considered a tenant at sufferance of the purchaser of the Property, and said purchaser shall be entitled to immediate possession thereof, and if Borrower shall fail to vacate the Property immediately, the purchaser may and shall have the right, without further notice to Borrower, to go into any justice court in any precinct or county in which the Property is located and file an action in forcible entry and detainer, which action shall lie against Borrower or its assigns or legal representatives, as a tenant at sufferance. This remedy is cumulative of any and all remedies the purchaser may have hereunder or otherwise.
(i) Upon, or at any time after, commencement of foreclosure of the lien and security interest provided for herein or any legal proceedings hereunder, Bank may make application to a court of competent jurisdiction, as a matter of strict right and without notice to Borrower or regard to the adequacy of the Property for the repayment of the Indebtedness, for appointment of a receiver of the Property, and Borrower does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms as may be approved by the court, and shall apply such rents in accordance with the provisions of subsection (h) of this Section 26.
(ii) Bank may exercise any and all other rights, remedies and recourses granted under the Loan Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise.
(f) Trustee and Bank shall have all rights, remedies and recourses granted in the Loan Documents and available at law or equity and the same (i) shall be cumulative and concurrent;
(ii) may be pursued separately, successively or concurrently against Borrower, any other borrower of the Indebtedness or others obligated under the Notes, or against the Property, or against any one or more of them at the sole discretion of Bank; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Borrower that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (iv) are intended to be, and shall be, nonexclusive.
(g) To the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided fullest extent permitted by law, Borrower hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to Borrower by any present or future laws exempting the requirement Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of reasonable execution, exemption from civil process, redemption or extension of time for payment; (ii) all notices of any Event of Default (except as may be specifically provided for under the terms hereof), presentment, demand, notice shall be met if such of intent to accelerate, notice is delivered of acceleration and any other notice of Bank’s or Trustee’s election to exercise or the address actual exercise of such Borrower set forth above at least ten any right, remedy or recourse provided for under the Loan Documents; (10iii) days before any right to appraisal or marshalling of assets or a sale in inverse order of alienation; (iv) the time exemption of homestead; and (v) the administration of estates of decedents, or other matter to defeat, reduce or affect the right of Bank under the terms of this Instrument to sell the Property for the collection of the sale Indebtedness secured hereby (without any prior or disposition. Any proceeds different resort for collection) or the right of any disposition by Lender Bank, under the terms of any of the Collateral may be first applied by Lender this Instrument, to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward receive the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount out of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount proceeds of sale of the Original Currency so purchased exceeds the sum originally due Property in preference to Lender in the Original Currency, Lender shall remit every other person and claimant whatever (only reasonable expenses of such excess to Borrowerssale being first deducted).
Appears in 1 contract
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein)kind, all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that and during the continuance of an Event of Default, to the extent permitted by applicable law (i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request Lender's request, assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent agent, may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender shall have the right to sell, lease or otherwise dispose of the Collateral (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have the right to purchase at any such sale. Lender will give the applicable Borrower reasonable notice of the time and place of any public sale of the collateral Collateral or of the time after which any private sale or other intended disposition of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, incurred in connection with the repossession, care, safekeeping, sale or otherwise of any or all of the Collateral, or in any way relating to the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to the Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (American Telesource International Inc)
RIGHTS AND REMEDIES ON DEFAULT. At Lender's option, upon (a) Upon the occurrence of any such Event of Default under Section 14, and at any time thereafter, at Lender's option, Lender's commitment to lend shall terminate and/or all unmatured Indebtedness evidenced by the Note will immediately become due and payable without presentation, demand, protest, or notice of any kind (except as expressly provided for herein), all of which are expressly waived. Lender may exercise, from time to time, any rights and remedies available to it under this Agreement, any Note, the Uniform Commercial Code and other applicable law. Each Borrower agrees that upon the occurrence that during the continuance of an Event of Default, to the extent permitted by applicable law :
(i) any amounts payable under this Agreement or under any Note shall thereafter bear interest at a rate per annum equal to the Interest Rate plus three percent (3%), or the maximum rate per annum allowed by law, whichever is less, compounded monthly and payable on demand (both before and after judgment), until the Indebtedness is paid in full or the Event of Default is cured, (ii) it will, at Lenders request assemble the Collateral and make it available to Lender at places which Lender shall reasonably select, and (iii) Lender, by itself or its agent may, without notice to any person and without judicial process of any kind, enter into any premises or upon any land owned, leased or otherwise under the real or apparent control of any Borrower, or any agent of any Borrower, where the Collateral may be, or where Lender believes the Collateral may be, and disassemble, render unusable, and/or repossess all or any item of the Collateral, disconnecting and separating the Collateral from any other property. Each Borrower expressly waives all further rights to possession of the Collateral after the occurrence and during the continuance of an Event of Default and all claims for injuries suffered through, or loss caused by, such entering and/or repossession. Lender The Secured Parties shall have the right to sell, lease or otherwise dispose declare the Obligations immediately due and payable.
(ii) The Secured Parties shall be entitled to exercise all of the rights, powers, privileges and remedies of a secured party under the New York Uniform Commercial Code (the “UCC”) then in force.
(b) If any notice to the Company of the sale or other disposition of Collateral is required by then applicable law, five business (or contract to do so), whether in its then condition or after further preparation or processing, either at public or private sale, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such terms and conditions as Lender, in its sole discretion, may deem advisable. Lender shall have 5) days prior written notice (which the right to purchase at any such sale. Lender will give the applicable Borrower Company agrees is reasonable notice within the meaning of Section 9.612(a) of the Uniform Commercial Code) shall be given to the Company of the time and place of any public sale of Collateral; and the collateral Company hereby agrees any such sale may be by private sale. The rights granted in this Section are in addition to any and all rights available to the Collateral Agent under the Uniform Commercial Code.
(c) The Collateral Agent is authorized, at any such sale, if the Collateral Agent deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree, among other things, that they are purchasing the Collateral for their own account for investment, and not with a view to the distribution or resale thereof, or otherwise to restrict such sale in such other manner as the Collateral Agent deems advisable to ensure such compliance. Sales made subject to such restrictions shall be deemed to have been made in a commercially reasonable manner.
(d) All proceeds received by the Collateral Agent for the benefit of the time after which Secured Parties in respect of any private sale sale, collection or other intended enforcement or disposition of Collateral, shall be applied (after deduction of any amounts incurred by the Collateral Agent in enforcing the rights of the Secured Parties hereunder or any other amounts that are payable to the Collateral Agent or the Secured parties pursuant to this Agreement) against the Obligations pro rata among the Secured Parties in proportion to their interests in the Obligations. Upon payment in full of all Obligations, the Company shall be entitled to the return of all Collateral, including cash, that has not been used or applied toward the payment of Obligations or used or applied to any and all costs or expenses of the Collateral is to be made. Unless otherwise provided by law, the requirement of reasonable notice shall be met if such notice is delivered to the address of such Borrower set forth above at least ten (10) days before the time of the sale or disposition. Any proceeds of any disposition by Lender of any of the Collateral may be first applied by Lender to the payment of expenses, including reasonable attorneys' fees and legal expenses, Agent incurred in connection with the repossession, care, safekeeping, sale liquidation of the Collateral (unless another person is legally entitled thereto). Any assignment of Collateral by the Collateral NEWYORK01 1048677v3 362761-000013 05/20/2005 Agent to the Company shall be without representation or otherwise warranty of any or all nature whatsoever and wholly without recourse. To the extent allowed by law, each Secured Party may purchase the Collateral and pay for such purchase by offsetting up to such Secured Party’s pro rata portion of the Collateral, or in any way relating purchase price with sums owed to such Secured Party by the rights of Lender hereunder. Any balance of such proceeds may be applied by Lender toward Company arising under the payment of the Indebtedness in such order as Lender, in its sole discretion, shall determine. The Borrowers shall be liable for, and shall pay to Lender on demand, any deficiency which may remain after such sale, lease or other disposition, and Lender agrees to remit to Borrowers any surplus resulting therefrom. If, for the purposes of obtaining judgment in respect of any claim under this Agreement Obligations or any other Loan Document in any court, it is necessary to convert a sum due hereunder or thereunder to the Lender in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures Lender could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. The obligations of Borrowers in respect of any sum due in the Original Currency to the Lender under this Agreement or any other Loan Document shall, notwithstanding any judgment in any other Currency, be discharged only to the extent that on the business day following receipt by Lender of any sum adjudged to be so due in such Other Currency, Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, Borrowers shall, as a separate obligation and notwithstanding any such judgment, jointly and severally, indemnify Lender against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lender in the Original Currency, Lender shall remit such excess to Borrowerssource.
Appears in 1 contract
