Rights Upon Default. In the event of: a. Depositary’s failure to pay, when due, the whole or any part of the Public Money deposited with the Depositary; b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services; c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with Treasury; d. Any representation or warranty of Depositary made herein being incorrect or untrue as of the date hereof or any date hereafter; e. Any failure or suspension of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury shall have all the rights and remedies of a secured party under all applicable federal and state laws with respect to the Collateral, including without limitation the right, without prior notice or demand, through such agents as Treasury may designate for the purpose, to forthwith unilaterally redeem or sell the Collateral, and any addition thereto or substitution therefore, or any part thereof, at either public or private sale, and apply the proceeds of such redemption or sale, after deducting all necessary or proper expense of such redemption or sale, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handling, or both, with Depositary to remain liable for any deficiency, and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw the Collateral, or any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nominee, and ownership of the Collateral shall transfer to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral to Treasury upon default by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and to comply with all instructions issued by Treasury without further consent of Depositary.
Appears in 2 contracts
Samples: Collateral Pledge and Security Agreement, Collateral Pledge and Security Agreement
Rights Upon Default. In Upon the event ofoccurrence of any of the following events or acts:
a. Depositary’s failure A. If the COMPANY fails to pay, make payment when due;
B. If any representation or warranty of this Agreement shall be false when made or, except for 4.D and 4.E, shall be false at any time during the whole term of this Agreement or any part of extension thereof, or if the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary COMPANY defaults in the performance of the Services;
c. Any other defaultany covenant, failurecondition or agreement contained in this Agreement or any material covenant, condition or breach agreement contained in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with TreasuryLASALLE;
d. Any representation C. If the COMPANY becomes insolvent or warranty is unable to pay its debts as they mature; or makes an assignment for the benefit of Depositary made herein being incorrect creditors or untrue admits in writing its inability to pay its debts as they mature; or suspends transaction of its usual business, or if a trustee of any substantial part of the date hereof assets of the COMPANY is applied for or appointed, or if any proceedings involving the insolvency or inability to pay the debt of the COMPANY are commenced by the COMPANY under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government or any date hereafterstate government;
e. Any failure or suspension D. Company shall fail to maintain the following ratio: Liabilities defined in accordance with generally accepted accounting principles ("GAAP") to Tangible Equity defined in accordance with GAAP of active operations of Depositary, including but not limited 8 to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury 1. LASALLE shall have all the rights and remedies provided by applicable law and, without limiting the generality of a secured party under the foregoing, may, at its option, declare its commitments to be terminated and the Note shall thereupon be and become forthwith, due and payable, without any presentment, demand, protest or other notice of any kind, all applicable federal and state laws with respect of which are hereby expressly waived, anything contained herein or in the Note to the Collateralcontrary notwithstanding, including any may, also without limitation the rightlimitation, without prior notice or demand, through such agents as Treasury may designate for the purpose, to forthwith unilaterally redeem or sell the Collateral, and any addition thereto or substitution therefore, or any part thereof, at either public or private sale, appropriate and apply the proceeds of such redemption or sale, after deducting all necessary or proper expense of such redemption or sale, to toward the payment of Public Money deposited with Depositary the Note any indebtedness of LASALLE to the COMPANY however created or the repayment of Public Money received by Depositary for transmission or handling, or both, with Depositary to remain liable for any deficiencyarising, and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been mademay, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to without limitation exercise any and all other security entitlements with respect rights in and to the Custody Account and the other Collateralcollateral security, if any, referred to withdraw the Collateral, or any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nominee, and ownership of the Collateral shall transfer to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral to Treasury upon default by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and to comply with all instructions issued by Treasury without further consent of Depositaryin Section 7 above.
Appears in 1 contract
Samples: Revolving Loan Agreement (Midwest Banc Holdings Inc)
Rights Upon Default. a. In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at Agent's request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such Grantor, whether at such Grantor's premises or elsewhere. Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations, including any attorneys' fees and other expenses incurred by Agent or any Lender to collect such deficiency.
b. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
c. To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of assets in wholesale rather than retail markets, (ix) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (x) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
d. Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of covenants not to assert against the Collateral to Treasury upon default by DepositaryAgent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Roller Bearing Co of America Inc)
Rights Upon Default. (a) In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continued, each Grantor further agrees, at Agent's request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such Grantor, whether at such Grantor's premises or elsewhere. Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations, including any reasonable attorneys' fees and other expenses incurred by Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this SECTION 7(C) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this SECTION 7(C). Without limitation upon the foregoing, nothing contained in this SECTION 7(C) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this SECTION 7(C).
(d) Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of covenants not to assert against the Collateral to Treasury upon default by DepositaryAgent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (Tefron LTD)
Rights Upon Default. In (a) If, following delivery of an Exercise Notice and if no Rescission Notice is delivered, Optionor does not close the event of:
a. Depositary’s failure to pay, when due, the whole or any part purchase of the Public Money deposited Option Property in accordance with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with Treasury;
d. Any representation or warranty of Depositary made herein being incorrect or untrue as of the date hereof or any date hereafter;
e. Any failure or suspension of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default terms of this Agreement and Treasury shall have all the rights and remedies of a secured party under all applicable federal and state laws with respect to the Collateral, (including without limitation the nonsatisfaction of the conditions to Closing specified in Section 2.2), or shall otherwise fail or refuse to observe and keep the terms of this Agreement or the Contract of Sale, then the Corporation shall have the right, without prior notice or demand, through such agents as Treasury may designate for the purposeat its sole option, to forthwith unilaterally redeem or sell (i) elect to declare this Agreement cancelled, whereupon, the Collateral, and any addition thereto or substitution therefore, or any part thereof, at either public or private sale, and apply the proceeds of such redemption or sale, after deducting all necessary or proper expense of such redemption or sale, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handling, or both, with Depositary to remain liable for any deficiency, and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to Corporation shall be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and entitled to exercise any and all rights and remedies available to it by contract, at law or in equity, which rights and remedies shall be cumulative, or (ii) elect to affirm this Agreement and enforce its specific performance or recover against the Authority for its breach. The Authority shall be liable for and agrees to pay all damages, costs and expenses incurred by the Corporation arising out of or in connection with or resulting from the failure or refusal of Optionor to close the purchase and observe and keep the terms of this Agreement or the Contract of Sale, as aforesaid, including reasonable attorneys' and other security entitlements experts' fees and disbursements.
(b) If, having given the Exercise Notice and not having given a Rescission Notice, the Corporation does not close the purchase of the Option Property in accordance with respect the terms of this Agreement or shall otherwise fail or refuse to observe and keep the terms of this Agreement or the Contract of Sale, then Optionor shall be entitled to exercise any and all rights and remedies available to it by contract, at law or in equity. The Corporation shall be liable for and agrees to pay all damages, costs and expenses incurred by Optionor arising out of or in connection with or resulting from the failure or refusal of the Corporation to close the purchase and observe and keep the terms of this Agreement or the Contract of Sale, as aforesaid, including reasonable attorneys' and other experts' fees and disbursements.
(c) In furtherance of the foregoing, the parties acknowledge that (i) it will be impossible to measure in money the damage to the Custody Account and the other Collateral, to withdraw the Collateral, or Corporation of any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nominee, and ownership of the Collateral shall transfer to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral to Treasury upon default failure by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and Optionor to comply with any of the obligations imposed by this Agreement, including its failure to cause the conditions to Closing specified in Section 2.2 to be satisfied, (ii) every such restriction and obligation is material, and (iii) in the event of any such failure, the Corporation will not have an adequate remedy at law or in damages. Therefore, each Optionor hereby consents to the issuance of an injunction or the enforcement of other equitable remedies against it upon the suit of the Corporation, without bond or other security, to compel performance of any term hereof, and waives any defenses to any such suit in the nature of failure of consideration, breach of any other provision of this Agreement (other than the failure by the Corporation to tender payment of the Purchase Price as provided herein), and availability of relief in damages; provided, however, that the foregoing shall not be deemed to constitute a waiver of any claim for damages that Optionor may have under Section 6.1(b) above or otherwise.
(d) In the event that any condition to Closing specified in Section 2.2 shall not have been satisfied on or prior to the Closing Date, the Corporation shall have the right, which shall be in addition to any other rights or remedies it may have hereunder, at law or in equity, to postpone the Closing for a reasonable period and, during such period, the Corporation shall have the right, in the name, on behalf and at the expense of Optionor, to take such action or do such things as shall be necessary, proper or advisable to cause all instructions issued by Treasury without further consent of Depositarysuch conditions to Closing to be satisfied. In such event, all references herein to the Closing Date shall be to the actual date on which the Closing occurs.
Appears in 1 contract
Rights Upon Default. (a) In the event of:
a. Depositary’s failure addition to pay, when due, the whole or any part of the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity all other rights and remedies granted to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or it under this Security Agreement and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Debt, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Lender may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Lender, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Lender's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Lender, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to Treasury time with or without notice. Lender shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Lender deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at Lender's request, to assemble the Collateral and make it available to Lender at a place or places designated by Lender which are reasonably convenient to Lender and such Grantor, whether at such Grantor's premises or elsewhere. Until Lender is able to effect a sale, lease or other disposition of Collateral, Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its agentvalue or for any other purpose deemed appropriate by Lender. Lender shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Lender. Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Lender's remedies with respect to such appointment without prior notice or hearing as to such appointment. Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Debt as provided in the Mezzanine Loan Agreement, and only after so paying over such net proceeds, and after the payment by Lender of any other amount required by any provision of law, need Lender account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the negligence or willful misconduct of Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days' prior notice by Lender to Grantor of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Debt, including any reasonable attorneys' fees and other expenses incurred by Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) Lender shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to transfer the payment of the Debt or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Lender shall not be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Debt or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under any other Security Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of the Collateral covenants not to Treasury upon default by Depositaryassert against Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
Rights Upon Default. In Upon the event ofoccurrence of an Event of Default and at any time thereafter, and whether or not Bank shall declare any or all of the Obligations to be immediately due and payable in the manner and with the effect stated in the Loan Agreement, then and in such event:
a. Depositary’s failure (a) Bank may foreclose upon and take possession of the Collateral and may exclude the Debtor, and all Persons claiming by, through or under the Debtor, from possession thereof, and may assign the Collateral to paya nominee or a third party. In connection herewith Bank or any third party assignee or nominee of Bank shall have the right to exercise, when duein the name of the Debtor, the whole Debtor’s rights and powers with respect to the Collateral.
(b) Bank shall have all rights and remedies of a Bank available under the UCC and any other rights and remedies available under this Agreement and under the Loan Agreement and any other documents evidencing or securing repayment of the Obligations or at law or in equity.
(c) The Debtor hereby agrees that if notice of sale or other disposition of the Collateral is given in the manner and to the address or addresses then required pursuant to the Loan Agreement at least fifteen (15) business days before the time of the sale or other disposition, such notice shall be deemed reasonable and shall fully satisfy any requirement for the giving of said notice, whether required by the UCC, any other law or otherwise. Any sale or disposition may occur by private proceedings at Bank’s election, and Debtor acknowledges that, due to the nature of the Collateral and its essential relationship to the operation of the facility, Bank may buy at any such private sale.
(d) Bank shall have the right, power and authority to sell the Collateral or any part thereof at public or private sale for cash, upon credit, or for future delivery, and at such price or prices as Bank may deem best, and Bank may be the purchaser of any and all of the Collateral so sold, in such manner and order as Bank may in its sole discretion elect. Upon any such sale, Bank shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Any such public sale shall be held at such time or times, within ordinary business hours, and at such place or places, as Bank may fix in the notice of such sale. At any sale the Collateral may be sold in one lot as an entirety or in separate parcels as Bank may determine. Bank shall not be obligated to make any sale pursuant to any such notice. Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at any time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Public Money deposited with Collateral on credit or for future delivery, the Depositary;
b. The Collateral so sold may be retained by Bank until the selling price is paid by the purchaser thereof, but Bank shall incur no liability in case of the failure of such purchaser to take up and pay for any reason the Collateral so sold, and in case of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, such failure, such Collateral may again be sold upon like notice. Each and every method of disposition described in this paragraph shall constitute disposition in a commercially reasonable manner. In conjunction therewith, in addition to or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with Treasury;
d. Any representation or warranty of Depositary made herein being incorrect or untrue as of the date hereof or any date hereafter;
e. Any failure or suspension of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety substitution for those rights and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement remedies and Treasury shall have all the rights and remedies provided for herein:
(e) It shall not be necessary that the Collateral or any part thereof be present at the location of a secured party under all applicable federal and state laws such sale.
(f) The sale by Bank of less than the whole of the Collateral shall not exhaust the rights of Bank hereunder or with respect to the Collateral, including without limitation and Bank is specifically empowered to make successive sales hereunder until the rightwhole of the Collateral shall be sold; and, without prior notice or demand, through such agents as Treasury may designate for the purpose, to forthwith unilaterally redeem or sell the Collateral, and any addition thereto or substitution therefore, or any part thereof, at either public or private sale, and apply if the proceeds of such redemption sale of less than the whole of the Collateral shall be less than the aggregate of the Obligations secured hereby, this Security Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made.
(g) In the event any sale hereunder is not completed or is defective in the opinion of Bank, such sale shall not exhaust the rights of Bank hereunder and Bank shall have the right to cause a subsequent sale or sales to be made hereunder.
(h) Any and all statements of fact or other recitals made in any bxxx of sale or assignment or other instrument evidencing any sale hereunder as to nonpayment of the Indebtedness or as to the occurrence of an Event of Default, or as to Bank having declared all of the Obligations to be due and payable, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, as to any other act or thing having been duly done by Bank shall be taken as prima facie evidence of the truth of the facts so stated and recited.
(i) Bank may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any such sale held by Bank, including the sending of notices and the conduct of sale, after deducting but in the name and on behalf of Bank.
(j) The proceeds of any sale or other disposition or collection of or other realization upon all necessary or proper expense any part of such redemption the Collateral shall be applied in the following order of priority: first, to pay the costs and expenses of collection, custody, sale or saleother disposition or delivery (including, without limitation, reasonable legal costs and attorneys’ fees) and all other charges incurred by Bank with respect to the Collateral; second, to the payment of Public Money deposited with Depositary the Obligations in such order as Bank may, in its sole discretion, determine; and third, to pay any surplus to the Debtor or to any person or party lawfully entitled thereto, or as a court of competent jurisdiction may direct.
(k) Bank may use or operate the Collateral for the purpose of preserving it or its value. Bank may require Debtor to assemble the Collateral and make it available to Bank at a place to be designated by Bank which is reasonably convenient to both parties. Expenses of retaking, holding, preparing for sale, selling, or costs and expenses in enforcing this Agreement, or the repayment like shall include reasonable attorneys’ fees and legal expenses incurred by Bank, and the same, together with all advances made by Bank on behalf of Public Money received by Depositary for transmission or handlingthe Debtor, or both, with Depositary shall be part of the Obligations secured hereby. Debtor shall be liable to remain liable Bank for any deficiency, and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw the Collateral, or any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nominee, and ownership of the Collateral shall transfer to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral to Treasury upon default by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and to comply with all instructions issued by Treasury without further consent of Depositary.
Appears in 1 contract
Rights Upon Default. a. In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Administrative Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Administrative Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Administrative Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver such said Collateral (or contract to Treasury or its agentdo so), or to transfer the Collateral or any part thereof into thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Administrative Agent, Revolver Agent or any Lender shall have the name right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Treasury Administrative Agent, Revolver Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Administrative Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Administrative Agent deems necessary or advisable. Each Grantor further agrees, at Administrative Agent's request, to assemble the Collateral and make it available to Administrative Agent at places which Administrative Agent shall select, whether at such Grantor's premises or elsewhere. Until Administrative Agent is able to effect a sale, lease, or other disposition of Collateral, Administrative Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its nomineevalue or for any other purpose deemed appropriate by Administrative Agent. Administrative Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Administrative Agent. Administrative Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Administrative Agent's remedies (for the benefit of Administrative Agent, Revolver Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and ownership only after so paying over such net proceeds, and after the payment by Administrative Agent of any other amount required by any provision of law, need Administrative Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Administrative Agent, Revolver Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Administrative Agent, Revolver Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Administrative Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall transfer to Treasury. Depositary authorizes remain liable for any deficiency if the release, withdrawal, and delivery proceeds of any sale or disposition of the Collateral are insufficient to Treasury upon default pay all Obligations, including any attorneys' fees and other expenses incurred by DepositaryAdministrative Agent, and authorizes Revolver Agent or any Lender to collect such agents deficiency.
b. Except as Treasury may designate to perform the above tasks to relyotherwise specifically provided herein, without verificationeach Grantor hereby waives presentment, on the written statement of Treasury as demand, protest or any notice (to the existence maximum extent permitted by applicable law) of a default and to comply any kind in connection with all instructions issued by Treasury without further consent of Depositarythis Security Agreement or any Collateral.
Appears in 1 contract
Rights Upon Default. (a) In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this US Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Secured Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach US Grantor expressly agrees that in any such event Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such US Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption US Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such US Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent, Canadian Agent or any Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent, Canadian Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each US Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any US Grantor's premises or elsewhere and shall have the right to use any US Grantor's premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each US Grantor further agrees, at Agent's request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such US Grantor, whether at such US Grantor's premises or elsewhere. Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any US Grantor to maintain or preserve the rights of such US Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent, Canadian Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Secured Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any US Grantor. To the maximum extent permitted by applicable law, each US Grantor waives all claims, damages, and demands against Agent, Canadian Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Agent, Canadian Agent or such Lender as finally determined by a court of competent jurisdiction. Each US Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. US Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Secured Obligations, including any attorneys' fees and other expenses incurred by Agent, Canadian Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each US Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this US Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each US Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the US Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each US Grantor acknowledges that the purpose of this Section 7(c) is to provide non- exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any US Grantor or to impose any duties on Agent that would not have been granted or imposed by this US Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Agent, Canadian Agent and Lenders shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any US Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Agent, Canadian Agent and Lenders shall not be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Secured Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights and remedies hereunder or under any other Loan Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each US Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of the Collateral covenants not to Treasury upon default by Depositaryassert against Agent, Canadian Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis US Security Agreement, or otherwise.
Appears in 1 contract
Rights Upon Default. (a) In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Administrative Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Administrative Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Administrative Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver such said Collateral (or contract to Treasury or its agentdo so), or to transfer the Collateral or any part thereof into thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Administrative Agent or any Lender shall have the name right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Treasury Administrative Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Administrative Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Administrative Agent deems necessary or advisable. If an Event of Default shall have occurred and be continuing, each Grantor further agrees, at Administrative Agent's request, to assemble the Collateral and make it available to Administrative Agent at places which Administrative Agent shall select and that are mutually agreeable to the applicable Grantor and Administrative Agent, whether at such Grantor's premises or elsewhere. Until Administrative Agent is able to effect a sale, lease, or other disposition of Collateral, Administrative Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its nomineevalue or for any other purpose deemed appropriate by Administrative Agent. Administrative Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Administrative Agent. Administrative Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Administrative Agent's remedies (for the benefit of Administrative Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and ownership only after so paying over such net proceeds, and after the payment by Administrative Agent of any other amount required by any provision of law, need Administrative Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Administrative Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Administrative Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Administrative Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall transfer to Treasury. Depositary authorizes remain liable for any deficiency if the release, withdrawal, and delivery proceeds of any sale or disposition of the Collateral are insufficient to Treasury upon default pay all Obligations, including any attorneys' fees and other expenses incurred by DepositaryAdministrative Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, and authorizes such agents as Treasury may designate to perform the above tasks to relyeach Grantor hereby waives presentment, without verificationdemand, on the written statement of Treasury as protest or any notice (to the existence maximum extent permitted by applicable law) of a default and to comply any kind in connection with all instructions issued by Treasury without further consent of Depositarythis Security Agreement or any Collateral.
Appears in 1 contract
Rights Upon Default. In the event ofIf any Event of Default shall occur, then:
a. Depositary’s failure (a) Banc One Leasing may, at its option and without notice, declare the unpaid balance of any or all of the Obligations immediately due and payable and this Agreement and any or all of the Obligations in default;
(b) All payments received by Debtor under or in connection with any of the Collateral shall be held by Debtor in trust for Banc One Leasing, shall be segregated from other funds of Debtor and shall forthwith upon receipt by Debtor be turned over to payBanc One Leasing in the same form as received by Debtor (duly endorsed by Debtor to Banc One Leasing, when dueif required). Any and all such payments so received by Banc One Leasing (whether from Debtor or otherwise) may, in the sole discretion of Banc One Leasing, be held by Banc One Leasing, or then or at any time thereafter be applied in whole or in part by Banc One Leasing against, all or any part of the Public Money deposited with the DepositaryObligations in such order as Banc One Leasing may elect;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with Treasury;
d. Any representation or warranty of Depositary made herein being incorrect or untrue as of the date hereof or any date hereafter;
e. Any failure or suspension of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury (c) Banc One Leasing shall have all the rights and remedies of a secured party under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations and under the UCC as adopted in the state where Banc One Leasing's principal office is located or other applicable laws. Without limiting the generality of the foregoing, Banc One Leasing shall have the right to take possession of the Collateral in full or in part and for that purpose Banc One Leasing may enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom;
(d) Without demand of performance or other demand, advertisement or notice of any kind (except the notice(s) specified below regarding the time and place of public sale or disposition or time after which a private sale or disposition is to occur) to Debtor, any Obligor or any other person or entity (all applicable federal and state laws with respect to each of which demands, advertisements and/or notices are hereby expressly waived), Banc One Leasing may forthwith collect, receive, appropriate and realize upon the Collateral, including without limitation the rightin full or in any part thereof, without prior notice may abandon, not claim or demandnot take possession of any Collateral, through such agents as Treasury and/or may designate for the purposeforthwith sell, lease, assign, give an option or options to forthwith unilaterally redeem purchase or sell or otherwise dispose of and deliver the Collateral, and any addition thereto Collateral (or substitution thereforecontract to do so), or any part thereof, in one or more parcels at either public or private salesale(s) at any of Banc One Leasing's offices or elsewhere at such price(s) as Banc One Leasing may determine, for cash or on credit or for future delivery without assumption of any credit risk. Banc One Leasing shall have the right upon any public sale(s), and, to the extent permitted by law, upon any such private sale(s), to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of Debtor;
(e) Debtor, at Banc One Leasing's request, will assemble the Collateral and it available to Banc Leasing at such place(s) as Banc One Leasing may reasonably select, whether at Debtor's place(s) of business and/or the Location of Collateral or elsewhere. Debtor further agrees to allow Banc One Leasing to use or occupy Debtor's place(s) of business and/or Location of Collateral, without charge, for the purpose of effecting Banc One Leasing's remedies in respect to the Collateral;
(f) Banc One Leasing shall apply the net proceeds of any such redemption collection, recovery, receipt, appropriation, realization or sale, after deducting all necessary reasonable costs and expenses of every kind incurred in connection therewith or proper expense incidental to the care or safekeeping of such redemption any or saleall of the Collateral or in any way relating to the rights of Banc One Leasing hereunder, including attorneys' fees and legal expenses, to the payment in whole or in part of Public Money deposited with Depositary the Obligations, in such order as Banc One Leasing may elect, and only after or applying over such net proceeds and after the repayment payment by Banc One Leasing of Public Money received any other amount required by Depositary any provision of law, need Banc One Leasing account for transmission the surplus, if any, to Debtor;
(g) To the extent permitted by applicable law, Debtor waives all claims, damages and demands against Banc One Leasing arising out of the repossession, retention, sale or handlingdisposition of the Collateral;
(h) Xxxxxx agrees that Banc One Leasing need not give more than ten (10) calendar days' notice, addressed to Debtor at Debtor's mailing address set forth above, of the time and place of any public sale or both, with Depositary to of the time after which a private sale may take place and that such notice is reasonable notification of such matters; and
(i) Debtor shall remain liable for any deficiency, and with any surplus remaining from deficiency if the proceeds of the redemption any sale or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw the Collateral, or any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nominee, and ownership disposition of the Collateral shall transfer are insufficient to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral pay all amounts to Treasury upon default by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and to comply with all instructions issued by Treasury without further consent of Depositarywhich Banc One Leasing is entitled.
Appears in 1 contract
Samples: Lease Agreement (STB Systems Inc)
Rights Upon Default. (a) In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other Applicable Law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Agent's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Agent deems necessary or advisable.
(b) If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at Agent's request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such Grantor, whether at such Grantor's premises or elsewhere. Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent's remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by Applicable Law, each Grantor waives all claims, damages, and demands against Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations, including any reasonable attorneys' fees and other expenses incurred by Agent or any Lender to collect such deficiency.
(c) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by Applicable Law) of any kind in connection with this Security Agreement or any Collateral.
(d) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8(d) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8(d). Without limitation upon the foregoing, nothing contained in this Section 8(d) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by Applicable Law in the absence of this Section 8(d).
(e) Neither Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither Agent nor the Lenders shall be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of the Collateral covenants not to Treasury upon default by Depositaryassert against Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
Samples: Security Agreement (RathGibson Inc)
Rights Upon Default. a. In the event of:
a. Depositary’s failure addition to pay, when dueall other rights and remedies granted to it under this Security Agreement, the whole or any part of Credit Agreement, the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Documents and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Agent may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Agent, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred and be continuing, each Grantor further agrees, at Agent’s request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such Grantor, whether at such Grantor’s premises or elsewhere. Until Agent is able to effect a sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Agent’s remedies (for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Agent or any Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Obligations, including any attorneys’ fees and other expenses incurred by Agent or any Lender to collect such deficiency.
b. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
c. To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of assets in wholesale rather than retail markets, (ix) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (x) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
d. Neither the Agent nor the Lenders shall be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the Collateral shall transfer to Treasury. Depositary authorizes extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the release, withdrawalbenefit and advantage of, and delivery of covenants not to assert against the Collateral to Treasury upon default by DepositaryAgent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
Rights Upon Default. In Upon the event of:
a. Depositary’s failure occurrence of any one or more of the above Events of Default and at any time thereafter, such default not having previously been cured, BANK shall have, in addition to pay, when dueall other rights and remedies, the whole or any part of the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or under any other agreement with Treasury;
d. Any representation or warranty of Depositary made herein being incorrect or untrue as of the date hereof or any date hereafter;
e. Any failure or suspension of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury shall have all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralAlabama Uniform Commercial Code, regardless whether the Code has been enacted in the jurisdiction where rights or remedies are asserted, including without limitation limitation, the right, without prior notice or demand, through such agents as Treasury may designate for the purpose, right to forthwith unilaterally redeem or sell take possession of the Collateral, and for that purpose BANK may, so far as BORROWER or Guarantor can give authority therefor, enter upon any addition thereto premises on which the Collateral may be situated and remove the same therefrom or substitution thereforestore the same on the premises pending disposition. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, BANK shall give to BORROWER at least five (5) days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any part thereofother intended disposition is to be made. Upon fifteen (15) days' prior written notice to BORROWER, BANK may at either public any time in its discretion transfer any securities or private saleother property constituting Collateral into its own name or that of its nominee and receive the income thereon and hold the same as security for Liabilities or apply it on principal or interest due on Liabilities. Insofar as Collateral shall consist of insurance policies, instruments, chattel paper, choices in action or the like, BANK may demand, collect, receipt for,- settle, compromise, adjust, sue xxx, foreclose or realize upon Collateral, as BANK may determine, whether or not Liabilities or Collateral are then due, and apply the proceeds of such redemption or sale, after deducting all necessary or proper expense of such redemption or sale, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handling, or both, with Depositary to remain liable for any deficiency, and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose of realizing BANK'S rights therein, BANK may receive, open and dispose of mail addressed to instruct BORROWER and endorse notes, checks, drafts, money orders, documents of title or other evidences of payment, shipment or storage or any Custodian form of Collateral to liquidate the Collateral held on behalf of and in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw the Collateral, or any part thereof, from the Custody Account and deliver such Collateral to Treasury or its agent, or to transfer the Collateral or any part thereof into the name of Treasury or its nomineeBORROWER. The enumeration of the foregoing rights is not intended to be exhaustive, and ownership the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. As against the obligations secured hereby, BORROWER hereby expressly waives all claims and all rights to claim any exemptions, both as to personal and real property, allowed or allowable under the Constitution or laws of the Collateral United States, the State of Alabama or any other jurisdiction. Any notice to BORROWER of sale, disposition or other intended action by BANK, required by law to be given to BORROWER, sent to BORROWER at the address of BORROWER shown hereinabove or at such other address of BORROWER as may from time to time be shown on BANK'S records, at least five days prior to such action, shall transfer constitute reasonable notice to Treasury. Depositary authorizes the release, withdrawal, and delivery of the Collateral to Treasury upon default by Depositary, and authorizes such agents as Treasury may designate to perform the above tasks to rely, without verification, on the written statement of Treasury as to the existence of a default and to comply with all instructions issued by Treasury without further consent of DepositaryBORROWER.
Appears in 1 contract
Samples: Credit and Security Agreement (Boyd Bros Transportation Inc)
Rights Upon Default. (a) In addition to all other rights and remedies granted to it under this Security Agreement and the event of:
a. Depositary’s failure to pay, when due, the whole or any part of the Public Money deposited with the Depositary;
b. The failure for any reason of any federal Government entity to receive promptly funds to be transmitted or otherwise handled by Depositary in the performance of the Services;
c. Any other default, failure, or breach in the observance or performance by Depositary of any of its obligations, duties, or requirements concerning deposits of Public Money hereunder or Loan Agreement and under any other instrument or agreement with Treasury;
d. Any representation securing, evidencing or warranty of Depositary made herein being incorrect or untrue as relating to any of the date hereof or Secured Obligations, if any date hereafter;
e. Any failure or suspension Event of active operations of Depositary, including but not limited to insolvency, bankruptcy, or unsatisfactory financial or safety and soundness conditions; or
f. Depositary being closed for business by law or by proper corporate action, or a receiver, or conservator, or liquidator, or any other officer being appointed for the purpose of terminating the business of the Depositary, then Depositary shall be in default of this Agreement and Treasury Default shall have occurred and be continuing, Lender may exercise all the rights and remedies of a secured party under all applicable federal and state laws with respect to the CollateralCode. Without limiting the generality of the foregoing, including without limitation the righteach Grantor expressly agrees that in any such event Lender, without prior notice demand of performance or other demand, through such agents as Treasury may designate for advertisement or notice of any kind (except the purpose, to forthwith unilaterally redeem or sell the Collateral, notice specified below of time and any addition thereto or substitution therefore, or any part thereof, at either place of public or private sale) to or upon such Grantor or any other Person (all and each of which demands, advertisements and apply notices are hereby expressly waived to the proceeds maximum extent permitted by the Code and other applicable law), may forthwith enter upon the premises of such redemption Grantor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or salegiving such Grantor or any other Person notice and opportunity for a hearing on Lender's claim or action and may collect, after deducting all necessary or proper expense of such redemption or salereceive, to the payment of Public Money deposited with Depositary or the repayment of Public Money received by Depositary for transmission or handlingassemble, or bothprocess, with Depositary to remain liable for any deficiency, appropriate and with any surplus remaining from the proceeds of the redemption or sale of such securities after payment or repayment in full has been made, to be paid to Depositary, or its receiver or conservator. In the event of default, Treasury shall also have the right to unilaterally direct such agents as Treasury may designate for the purpose to instruct any Custodian of Collateral to liquidate the Collateral held in any Custody Account and pay the proceeds thereof to Treasury or its agent, and to exercise any and all other security entitlements with respect to the Custody Account and the other Collateral, to withdraw realize upon the Collateral, or any part thereof, from the Custody Account and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Lender shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit Lenders, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby specifically waives and releases. Such sales may be adjourned and continued from time to time with or without notice. Lender shall have the right to conduct such sales on any Grantor's premises or elsewhere and shall have the right to use any Grantor's premises without charge for such time or times as Lender deems necessary or advisable. If any Event of Default shall have occurred and be continued, each Grantor further agrees, at Lender's request, to assemble the Collateral and make it available to Lender at a place or places designated by Lender which are reasonably convenient to Lender and such Grantor, whether at such Grantor's premises or elsewhere. Until Lender is able to effect a sale, lease, or other disposition of Collateral, Lender shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Lender. Lender shall have no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third parties with respect to Collateral while Collateral is in the possession of Lender. Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of Lender's remedies (for the benefit of Lender), with respect to such appointment without prior notice or hearing as to such appointment. Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Secured Obligations, and only after so paying over such net proceeds, and after the payment by Lender of any other amount required by any provision of law, need Lender account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Lender arising out of the repossession, retention or sale of the Collateral except such as arise solely out of the gross negligence or willful misconduct of Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Lender of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Secured Obligations, including any attorneys' fees and other expenses incurred by Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Lender to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Lender (i) to fail to incur expenses reasonably deemed significant by the Lender to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to Treasury or its agentbe disposed of, or to transfer obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Lender against risks of loss, collection or disposition of Collateral or to provide to the Lender a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Lender, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Lender in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or omissions by the Lender would not be commercially unreasonable in the Lender's exercise of remedies against the Collateral and that other actions or omissions by the Lender shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7(c). Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed to grant any rights to any Grantor or to impose any duties on Lender that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 7(c).
(d) Lender shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Lenders shall not be required to marshal the Collateral or any part thereof into guarantee of the name of Treasury Secured Obligations or its nomineeto resort to the Collateral or any such guarantee in any particular order, and ownership all of its and their rights hereunder or under the Collateral Loan Agreement shall transfer to Treasurybe cumulative. Depositary authorizes To the releaseextent it may lawfully do so, withdrawaleach Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and delivery of the Collateral covenants not to Treasury upon default by Depositaryassert against Lender, any valuation, stay, appraisement, extension, redemption or similar laws and authorizes such agents any and all rights or defenses it may have as Treasury may designate to perform the above tasks to relya surety now or hereafter existing which, without verificationbut for this provision, on the written statement of Treasury as might be applicable to the existence sale of a default and to comply with all instructions issued any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by Treasury without further consent of Depositarythis Security Agreement, or otherwise.
Appears in 1 contract
