Rights Upon Default. In addition to all other rights and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations, if any Event of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 each Grantor’s premises or elsewhere and shall have the right to use each 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license 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 not have any obligation to any Grantor to maintain or preserve the rights of any 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiency.
Appears in 1 contract
Samples: Security Agreement (Southern Construction Products Inc)
Rights Upon Default. In addition Subject in all cases to all other the Lessee's rights under paragraph (f) of Section 13 of this Lease and remedies granted to it under the entirety of this AgreementSection 19, upon the Credit Agreement, the other Loan Documents occurrence and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, each Grantor expressly agrees that in do any such event Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 of the following:
(a) Terminate the lease of any or all Property or Equipment leased hereunder;
(b) Whether or not the lease of Property is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Property or Equipment (with or without the concurrence or request of the Lessee) at a public or private sale (judicially or sales, at any exchange at non-judicially) pursuant to such prices notices and procedures 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 andbe required by law, to the extent permitted such requirements are not effectively waived by lawthe Lessee hereunder, provided that the disposition of any Property or Equipment shall take place in a commercially reasonable manner;
(d) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all of the Property as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof; and
(f) Continue this Lease in full force and effect and collect rent when due and/or enter the Property and assemble the Equipment and relet for the Lessee's account, with the Lessee liable for all costs incurred by the Lessor in reletting the same. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. Subject to the provisions of paragraph (f) of Section 13 hereof, no receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use and operation of the Property, or at the election of the Lessor, on account of the Lessee's liability hereunder. Acceptance of the keys to the Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of the Property unless the Lessor and Assignee shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee (without duplication) (i) all Basic Rent accrued to date of payment, (ii) any Additional Rent owing, (iii) all amounts payable pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including without limitation, in the event of a sale by the Lessor of the Property pursuant to this Section 19, all costs and expenses associated with such sale and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (v) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After an Event of Default, but subject to the provisions of paragraph (f) of Section 13 hereof, the Lessor may sell its interest in the Property and the Ground Sublease upon any such private sale or sales, to purchase for commercially reasonable terms that the benefit of Agent and Lenders, the whole or any part of said Collateral so soldLessor deems satisfactory, free of any right rights of the Lessee or equity any Person claiming through or under the Lessee. In the event of redemptionany such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Termination Value. Proceeds of sale received by the Lessor in excess of the Termination Value shall be credited against the Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds and/or payment of Termination Value under this Lease exceed the sum of (i) the Accrued Default Obligations and (ii) the Termination Value, and if the Lessee has paid the Termination Value, the Accrued Default Obligations and all other amounts required to be paid by Lessee under the Related Documents, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Termination Value. If the Lessor subsequently sells its interest in the Property, the proceeds of any such sale and/or any such amounts realized (net of any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to the Property after the termination of the Lease, which equity are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of redemption this paragraph. Notwithstanding anything to the contrary contained herein, if the Lessee converts the Property or any part thereof after an Event of Default, or if the Property is lost or destroyed by the Lessee at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Termination Value. In addition to any other remedies available under this Lease to the Lessor, the Lessor may choose, in its sole discretion, upon termination of this Lease to recover the maximum amount (including interest) to which the Lessor is entitled under applicable law with respect to rent accrued, or which would have accrued, under this Lease as of the time of any award, and, with respect to the loss of future rents, to recover from the Lessee the worth, at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that the Lessee proves could have been reasonably avoided. "The worth at the time of award", as used herein, is to be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent, or if less, the minimum discount rate permitted by law. In the event of a sale pursuant to this Section 19, upon receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property to a purchaser other than the Lessee or to the Lessee, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each Grantor hereby releasesshall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have No waiver by the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If Lessor of any Event of Default hereunder 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep in any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateralway be, or be construed to be, a waiver of any part thereof, future or subsequent Event of Default. With respect to the extent that it deems appropriate for termination of this Lease as a result of an Event of Default, the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights Lessee hereby waives service of any Grantor as against third parties with respect notice of intention to Collateral while Collateral is in the re-enter. The Lessee hereby waives any and all rights to recover or regain possession of Agent. Agent maythe Property or to reinstate this Lease as permitted or provided by or under any statute, if it so elects, seek the appointment of a receiver law or keeper to take possession of Collateral decision now or hereafter in force 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyeffect.
Appears in 1 contract
Samples: Master Lease Agreement (Minimed Inc)
Rights Upon Default. In addition If any Event of Default shall occur, then:
(a) CELI 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 CELI, shall be segregated from other funds of Debtor and shall forthwith upon receipt by Debtor be turned over to CELI in the same form as received by Debtor (duly endorsed by Debtor to CELI, if required). Any and all other such payments so received by CELI (whether from Debtor or otherwise) may, in the sole discretion of CELI, be held by CELI, or then or at any time thereafter be applied in whole or in part by CELI against, all or any part of the Obligations in such order as CELI may elect;
(c) CELI shall have the rights and remedies granted to it of a secured party under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations, if any Event of Default shall have occurred Obligations and be continuing, Agent may exercise all rights and remedies of a secured party under the CodeUCC as adopted in the state where CELI’s principal office is located or other applicable laws. Without limiting the generality of the foregoing, each Grantor expressly agrees CELI shall have the right to take possession of the Collateral in full or in part and for that in purpose CELI may enter upon any such event Agent, without 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 notice(s) specified below of regarding the time and place of public sale or disposition or time after which a private salesale or disposition is to occur) to or upon Debtor, any Grantor Obligor or any other Person person or entity (all and each of which demands, advertisements and and/or notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable lawwaived), CELI may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove appropriate and realize upon the Collateral, in full or in any part thereof, and may abandon, not claim or not take possession of any Collateral, and/or may forthwith sell, lease, license, assign, give an option or options to purchase, purchase or sell or otherwise dispose of and deliver said the Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, sale(s) at any exchange of CELI’s offices or elsewhere at such prices price(s) as it CELI may deem acceptabledetermine, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender CELI shall have the right upon any such public sale or sales sale(s), and, to the extent permitted by law, upon any such private sale or salessale(s), to purchase for the benefit of Agent and Lenders, the whole or any part of said the Collateral so sold, free of any right or equity of redemption, which equity redemption 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 each Grantor’s premises or elsewhere and shall have the right to use each 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 agreesDebtor;
(e) Debtor, at AgentCELI’s request, to will assemble the Collateral and make it available to Agent CELI at a place or places designated by Agent which are such place(s) as CELI may reasonably convenient to Agent and such Grantorselect, whether at such GrantorDebtor’s premises place(s) of business and/or the Location of Collateral or elsewhere. Without limiting the foregoing, Agent shall also have the right Debtor further agrees to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored allow CELI to use or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition occupy Debtor’s place(s) of business and/or Location of Collateral, Agent shall have the right to hold or use Collateralwithout charge, 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 not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with effecting CELI’s remedies in 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 Collateral;
(for the benefit of Agent and Lenders), with respect to such appointment without prior notice or hearing as to such appointment. Agent f) CELI shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale sale, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the Obligations care or safekeeping of any or all of the Collateral or in any way relating to the rights of CELI hereunder, including attorneys’ fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as provided in the Credit AgreementCELI may elect, and only after so paying or applying over such net proceeds, proceeds and after the payment by Agent CELI of any other amount required by any provision of law, need Agent CELI account for the surplus, if any, to any Grantor. Debtor;
(g) To the maximum extent permitted by applicable law, each Grantor Debtor waives all claims, damages, damages and demands against Agent or any Lender CELI arising out of the repossession, retention retention, sale or sale disposition 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 Collateral;
(h) Debtor agrees that CELI need not give more than ten (10) days prior notice by Agent calendar days’ notice, addressed to Debtor at Debtor’s mailing address set forth above, of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor ; and
(i) Debtor shall remain liable for any deficiency if the proceeds of any sale sate or disposition of the Collateral are insufficient to pay all Obligations, including any attorneys’ fees or other expenses incurred by Agent or any Lender amounts to collect such deficiencywhich CELI is entitled.
Appears in 1 contract
Samples: Security Agreement (Amedica Corp)
Rights Upon Default. In (a) Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to all exercising any other rights and remedies granted available to it under this Agreementapplicable law, the Credit Agreement, the other Loan Documents and under do any other instrument one or agreement securing, evidencing or relating to any more of the Obligationsfollowing (if, if any within fifteen (15) Business Days of receipt by the Lessee of an Event of Default shall have occurred Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and be continuingUnits of Equipment under Section 29(l) or, Agent may exercise all rights and remedies if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of a secured party under the Code. Without limiting the generality receipt of the foregoing, each Grantor expressly agrees that Event of Default Notice such purchase in any such event Agent, without demand of performance or other demand, advertisement or notice full compliance with Section 29(l)):
(i) Terminate the lease of any kind or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (except f) of this Section 19;
(ii) Whether or not the notice specified below lease of time any Property or Equipment is terminated, take immediate possession of and place remove any or all Equipment and other equipment or property of public or private sale) to or the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any Grantor premises without liability to the Lessee for so doing; provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(iii) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other Person person under this Lease and with or without the concurrence or request of the Lessee);
(iv) Hold, use, occupy, operate, remove, lease or keep idle any or all and each of which demandsProperty or Equipment as the Lessor in its sole discretion may determine, advertisements and notices are hereby expressly waived without any duty to account to the maximum extent permitted Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(v) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
(b) Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 Lessor from time to time with or without notice. Agent at the Lessor's election, and nothing herein contained shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each 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. Without limiting the foregoing, Agent shall also have the right deemed to require that each Grantor store and keep any Collateral pending further action the Lessor to await the date whereon this Lease or the term hereof would have expired by Agent, and while Collateral is so stored limitation had there been no such default by the Lessee or kept, provide no such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license termination 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 not have any obligation to any Grantor to maintain or preserve the rights cancellation.
(c) The receipt of any Grantor as against third parties payments under this Lease by the Lessor with respect to Collateral while Collateral is knowledge of any breach of this Lease by the Lessee or of any default by the Lessee 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiency.performance of
Appears in 1 contract
Samples: Lease Agreement (Arcadian Corp)
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality of the foregoing, each Grantor expressly agrees that in do any such event Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 the following:
(a) Terminate the lease of any credit risk. Agent or any Lender shall have the right upon any such public sale all Property 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 each Grantor’s premises or elsewhere and shall have the right to use each 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license 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 not have any obligation to any Grantor to maintain or preserve the rights of any 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 Equipment leased hereunder;
(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. b) To the maximum extent permitted by applicable law, each Grantor waives whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all claimsEquipment and other equipment or property of the Lessor in the possession of the Lessee, damageswherever situated, and demands against Agent for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any Lender arising out action has been taken under paragraph (a) or (b) above, sell the Lessor's and/or Lessee's interest in any Property or Equipment (with or without the concurrence or request of the repossessionLessee) at public or private sale (judicially or non-judicially), retention pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by the Lessee hereunder;
(d) Hold, use, occupy, operate, remove, lease or sale of keep idle any or all Property or Equipment as the Collateral Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof except such as arise solely out of expressly set forth herein;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the gross negligence terms hereof or willful misconduct of Agent to recover damages for the breach hereof; and
(f) Continue this Lease in full force and effect and collect rent when due, and/or enter the Property and assemble the Equipment and relet for the Lessee's account, with the Lessee liable for all costs incurred by the Lessor in reletting the same. Suit or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days prior notice by Agent of suits for the time and place recovery of any public sale or of default in the time after which a private sale may take place is reasonable notification of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds payment of any sale sum due hereunder or disposition of for damages may be brought by the Collateral are insufficient Lessor from time to pay all Obligationstime at the Lessor's election, including any attorneys’ fees or other expenses incurred by Agent or any Lender and nothing herein contained shall be deemed to collect such deficiency.require the Lessor to await the date
Appears in 1 contract
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality do any one or more of the foregoingfollowing:
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee;
(b) Whether or not the lease of any Property or Equipment is terminated, each Grantor expressly agrees take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, take immediate possession of any Property or Equipment and sell or relet any Property or Equipment (with or without the concurrence or request of the Lessee); PROVIDED, HOWEVER, that notwithstanding any such reletting or taking of possession, the Lessor may at any time thereafter elect to terminate this Lease for a continuing Event of Default; PROVIDED, FURTHER, that the Lessee shall remain liable for all of its monetary obligations hereunder, subject to applicable law and the provisions of this Section 19;
(d) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof; PROVIDED, HOWEVER, that no act or thing done by the Lessor or any of its agents, representatives or employees and no agreement accepting a surrender of any Property or Equipment shall be valid unless the same be made in writing and executed by the Lessor. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any such event Agentlawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without demand in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account of performance or other demand, advertisement or notice the Lessee's liability hereunder. Acceptance of the keys to any kind (except the notice specified below Parcel of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the CollateralProperty, or any part thereofsimilar act, 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)by the Lessor, or any part thereofagent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor and Assignee shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee (i) all Basic Rent accrued to date of payment, (ii) any Additional Rent owing as of such date, (iii) all amounts payable pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, , filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including without limitation, in the event of a sale by the Lessor of the Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale (PROVIDED that, if the provisions set forth in this Section 19 are applicable, such losses and damages shall not include any losses or damages for foregone rent, lost profits or loss of the Lessor's benefit of the bargain arising after the Lessee has paid in full all amounts due hereunder, has purchased the Property or Equipment from the Lessor free and clear of all Liens, and has otherwise performed all its obligations under this Section 19) and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (v) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may sell its interest in the Property and Equipment upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Pledged Contracts). In the event of any such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost of all Property and Equipment under this Lease. Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost of such Property or Equipment shall be credited against the Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds exceed the sum of (i) the Accrued Default Obligations and (ii) the Adjusted Acquisition Cost of all Property and Equipment under this Lease, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost of all Property and Equipment under this Lease. If the Lessor subsequently sells its interest in the Property or Equipment, the proceeds of any such sale and/or any such amounts realized (net of any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to the Property or Equipment after the termination of the Lease, which are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of this paragraph. Notwithstanding anything to the contrary contained herein, if the Lessee converts the Property and Equipment or any part thereof after an Event of Default, or if the Property and Equipment is lost or destroyed by the Lessee at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost of all Property and Equipment under this Lease. In the event of a sale pursuant to this Section 19, upon receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property and Equipment to a purchaser other than the Lessee or to the Lessee, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more parcels at a public of such remedies shall not preclude the simultaneous 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 later exercise by the Lessor of any credit riskor all such other remedies. Agent No waiver by the Lessor of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any Lender shall have future or subsequent Event of Default. With respect to the right upon any such public sale or sales andtermination of this Lease as a result of an Event of Default, the Lessee hereby waives, to the fullest extent permitted by law, upon (1) service of any such private sale notice of intention to re-enter or salesthe institution of legal proceedings to obtain re-entry or possession, to purchase for (2) the benefit of Agent and Lenders, the whole any laws now or any part of said Collateral so sold, free of any right hereafter in force exempting property from liability for rent 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 each Grantor’s premises or elsewhere and shall have the right to use each 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license 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 not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties Lessor with respect to Collateral while Collateral is in the election of remedies; and (3) any other rights which might otherwise limit or modify any of the Lessor's rights or remedies under this Section 19. The Lessee hereby waives any and all rights to recover or regain possession of Agent. Agent maythe Property and Equipment or to reinstate this Lease as permitted or provided by or under any statute, if it so elects, seek the appointment of a receiver law or keeper to take possession of Collateral decision now or hereafter in force 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyeffect.
Appears in 1 contract
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality do any one or more of the foregoing, each Grantor expressly agrees that in any such event Agent, without demand of performance or other demand, advertisement or notice of any kind following (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived subject to the maximum extent permitted by provisions of paragraph (b) of Section 13 of this Lease):
(i) Terminate the Code lease of the Project hereunder;
(ii) Whether or not the lease of the Project is terminated, take immediate possession of the Project and other applicable law)remove any equipment or property of the Lessor in the possession of the Lessee, may forthwith (personally or through its agents) wherever situated, and for such purpose, enter upon the premises where Premises without liability to the Lessee for so doing;
(iii) Whether or not any Collateral is located through self-helpaction has been taken under clause (i) or (ii) above, sell the Project (with or without the concurrence or request of the Lessee);
(iv) Hold, use, occupy, operate, repair, remove, lease or keep idle the Project as the Lessor in its sole discretion may determine, without any duty to mitigate damages with respect to any such action or inaction or with respect to any proceeds thereof; and
(v) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial processproceedings, either at law or in equity, to enforce the terms hereof. THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term, the Extended Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent, any Debt Yield-Maintenance Premium, Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Project, the Lessor may demand, receive and collect any moneys payable hereunder, without first obtaining a final judgment in any manner affecting such notice, proceedings, suit, action, order, warrant or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon judgment. Acceptance of the Collateralkeys to the Project, or any part thereofsimilar act, 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)by the Lessor, or any part thereofagent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of the Project unless the Lessor and Assignee shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent payable and the Variable Component of Basic Rent accrued through the date of termination of this Lease, (ii) any Additional Rent and Debt Yield-Maintenance Premium owing, (iii) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes and all costs and expenses related to (1) the conduct of investigations, studies, sampling and/or testing of the Premises and (2) the taking of any action, including, without limitation, any remedial measures or removal with respect to the Premises, each as required by Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including without limitation, in one or more parcels at the event of a public or private sale or salesby the Lessor of its interest in the Project pursuant to this Section 19, at any exchange at all costs and expenses associated with such prices sale and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (v) above are hereinafter sometimes referred to as it the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have sell its interest in the right Project upon any such public sale or sales and, to terms that 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 soldLessor deems satisfactory, free of any right rights of the Lessee or equity any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease or the Project Contracts). In the event of redemptionany such sale, which equity in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost. Proceeds of redemption each Grantor hereby releases. Such sales may sale received by the Lessor in excess of the Adjusted Acquisition Cost shall be adjourned and continued from time credited against the Accrued Default Obligations the Lessee is required to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisablepay under this Section 19. If such proceeds plus the Adjusted Acquisition Cost, exceed the sum of (i) Accrued Default Obligations and (ii) the Adjusted Acquisition Cost and (iii) any Event of Default shall have occurred Unrecovered Liabilities 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by AgentJudgments, and while Collateral is so stored or keptif the Lessee has indefeasibly paid the Adjusted Acquisition Cost, provide the Accrued Default Obligations plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19, such guards and maintenance services as excess shall be necessary paid by the Lessor to protect the same Lessee; PROVIDED, HOWEVER, that the Lessee shall remain liable from such excess proceeds for any Unrecovered Liabilities and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition Judgments that arise after the payment of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, such excess proceeds to the extent that it deems appropriate for such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the purpose expiration or termination of preserving Collateral or its value or for any other purpose deemed appropriate by Agentthis Lease. Agent shall not have any obligation As an alternative to any Grantor such sale, or if the Lessee converts the Project after an Event of Default, or if the Project suffers an Event of Loss or Taking or is otherwise lost or destroyed at the time of the Event of Default, in addition to maintain or preserve the rights Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost plus an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost. If the Lessor subsequently sells its interest in the Project, the proceeds of any Grantor as against third parties such sale (net of any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to Collateral while Collateral is the Project or Project Contracts after the termination of the Lease, which are not included in the possession Accrued Default Obligations (after taking into account any revenues received from the operation of Agentthe Project)) shall be distributed as provided in the third and fourth sentences of this paragraph. Agent mayIn the event the Lessor receives indefeasible payment from the Lessee of the Adjusted Acquisition Cost of the Project plus an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost, and the Accrued Default Obligations, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to the Lessee. In the event of a sale pursuant to this Section 19, upon indefeasible receipt by the Lessor of all amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to a purchaser other than the Lessee or to the Lessee, as the case may be. In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost, plus the Accrued Default Obligations, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or the Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if it so electsnecessary, seek the appointment of a receiver or keeper to take possession of Collateral obtain such consents to such assignment) and to enforce any assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of Agent’s remedies (damages for the benefit Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of Agent its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Lenders)Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such appointment Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior notice written consent of such third party or hearing the Lessor, as the case may be. No remedy referred to such appointment. Agent in this Section 19 is intended to be exclusive, but each shall apply be cumulative and in addition to any other remedy referred to above or otherwise available to the net proceeds Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such collectionremedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor of any Event of Default hereunder shall in any way be, recoveryor be construed to be, receipt, appropriation, realization a waiver of any future or sale subsequent Event of Default. With respect to the Obligations termination of this Lease as provided in a result of an Event of Default, the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent Lessee hereby waives service of any other amount required by notice of intention to re-enter. The Lessee hereby waives any provision of law, need Agent account for the surplus, if any, and all rights to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Agent recover or any Lender arising out regain possession of the repossessionProject or to reinstate this Lease as permitted or provided by or under any statute, retention law or sale of the Collateral except such as arise solely out of the gross negligence decision now 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 hereafter in force and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyeffect.
Appears in 1 contract
Rights Upon Default. In 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to all exercising any other rights and remedies granted available to it under this Agreementapplicable law, the Credit Agreement, the other Loan Documents and under do any other instrument one or agreement securing, evidencing or relating to any more of the Obligationsfollowing (if, if any within fifteen (15) Business Days of receipt by the Lessee of an Event of Default shall have occurred Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and be continuingUnits of Equipment under Section 29(l) or, Agent may exercise all rights and remedies if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of a secured party under the Code. Without limiting the generality receipt of the foregoing, each Grantor expressly agrees that Event of Default Notice such purchase in any such event Agent, without demand of performance or other demand, advertisement or notice full compliance with Section 29(l)):
(a) Terminate the lease of any kind or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (except f) of this Section 19;
(b) Whether or not the notice specified below lease of time any Property or Equipment is terminated, take immediate possession of and place remove any or all Equipment and other equipment or property of public or private sale) to or the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any Grantor premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other Person person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all and each of which demandsProperty or Equipment as the Lessor in its sole discretion may determine, advertisements and notices are hereby expressly waived without any duty to account to the maximum extent permitted Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or without notice. Agent of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall have not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to conduct such sales on each Grantor’s premises enforce the payment of Basic Rent or elsewhere and shall have Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use each Grantor’s premises without charge for such time and operation of any Unit of Equipment or times as Agent deems necessary the use, operation and occupation of any Parcel of Property, or advisableat the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. If Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by AgentDefault, and while Collateral is so stored notwithstanding any termination of this Lease or keptreentry or repossession by the Lessor, provide such guards the Lessee shall continue to be liable for, and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a saleLessor may recover from the Lessee, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, (i) all Basic Rent accrued to the extent that it deems appropriate for the purpose date of preserving Collateral or its value or for payment, (ii) any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties Additional Rent owing with respect to Collateral while Collateral is in all Property or Equipment leased by the possession of Agent. Agent mayLessee, if it so elects, seek the appointment of a receiver (iii) all amounts payable hereunder 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 under 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 Operative Document and (iv) all claimslosses, damages, costs and demands against Agent expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or any Lender arising out transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the repossessionLessor's remedies with respect thereto, retention or including, in the event of a sale of by 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 Lessor of any public sale Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the time after which a private sale may take place is reasonable notification prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith Property and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyEquipment.
Appears in 1 contract
Samples: Lease Agreement (Potash Corporation of Saskatchewan Inc)
Rights Upon Default. In addition Upon the occurrence and continuation of any Event of Default Brazos or any Assignee may in its discretion declare this Facilities Lease to be in default and do, to the extent permitted by applicable law, any one or more of the following:
(a) Terminate this Facilities Lease as to any or all Facilities leased hereunder;
(b) Whether or not this Facilities Lease as to any Facility is terminated, take immediate possession of and remove any or all FF&E and other rights equipment or property of Brazos in the possession of Lessee, wherever situated, and remedies granted for such purpose, enter upon any premises without liability to it Lessee for so doing;
(c) Whether or not any action has been taken under (a) or (b) above, sell any Facility or Brazos' interest in any Acquired Facilities Lease (with or without the concurrence or request of Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Facilities as Brazos in its sole discretion may determine, without any duty to account to Lessee with respect to any such action or inaction or for any proceeds thereof;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof; and
(f) Declare an Event of Facility Termination as to any or all Facilities and/or FF&E leased hereunder. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Brazos from time to time at Brazos' election, and nothing herein contained shall be deemed to require Brazos to await the date whereon this Facilities Lease or the term hereof would have expired by limitation had there been no such default by Lessee or no such termination or cancellation. The receipt of any payments under this Agreement, Facilities Lease by Brazos with knowledge of any breach of this Facilities Lease by Lessee or of any default by Lessee in the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to performance of any of the Obligationsterms, covenants or conditions of this Facilities Lease, shall not be deemed to be a waiver of any provision of this Facilities Lease. No receipt of moneys by Brazos from Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to Lessee, or operate as a waiver of the right of Brazos to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of Brazos to recover possession of any Facility or FF&E by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Facilities Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Facility, Brazos may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Facility, or at the election of Brazos, on account of Lessee's liability hereunder. Acceptance of the keys to any Facility, or any similar act, by Brazos, or any agent or employee, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Facility unless Brazos shall consent thereto in writing. If, after an Event of Default shall have occurred occurred, Lessee fails to surrender promptly after written request by Brazos or converts or destroys any Facility, Lessee shall be liable to Brazos for all Basic Rent and Additional Rent then due and payable with respect to such Facility, all other amounts payable under this Facilities Lease, the Acquisition Cost of such Facility as of the date of such request, conversion or destruction and all losses, damages and expenses (including, without limitation, attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the exercise of Brazos' remedies with respect thereto. If, after an Event of Default Brazos repossesses any Facility, notwithstanding any termination of this Facilities Lease, Lessee shall be continuingliable for and Brazos may recover from Lessee all Basic Rent accrued and any Additional Rent owing with respect to such Facility to the date of such repossession, all other amounts payable under this Facilities Lease, and all losses, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the exercise of Brazos' remedies with respect thereto. In addition, Brazos may sell Brazos' interest in any Facility upon any terms that Brazos deems satisfactory, free of any rights of Lessee or any person claiming through or under Lessee. In the event of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos shall be entitled to recover from Lessee, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any Facility so sold, minus the net proceeds of such sale (deducting from the gross proceeds of such sale any reasonable legal expenses, commissions, sales taxes or other costs or expenses associated with such sale) received by Brazos; provided, however, if the proceeds of such sale are in excess of the amount payable to Brazos pursuant hereto, such excess shall be the property of Lessee. In lieu of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos may cause Lessee to pay to Brazos, and Lessee shall pay to Brazos, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any or all of the Facilities, and upon payment in full of all such amounts Brazos shall transfer all of Brazos' right, title and interest in and to the Facility to Lessee. Brazos may (i) sell all or any part of the Facility or FF&E at public or private sale, as Brazos may determine, free and clear of any rights of the Lessee and without any duty to account to the Lessee with respect to such action or inaction or any proceeds with respect thereto (except to the extent required by clause (ii) below if Brazos shall elect to exercise its rights thereunder) in which event the Lessee's obligation to pay Basic Rent hereunder for periods commencing after the date of such sale shall be terminated or proportionately reduced, as the case may be; and (ii) if Brazos shall so elect, demand that the Lessee pay to Brazos, and the Lessee shall pay to Brazos, on the date of such sale, as liquidated damages for loss of a bargain and not as a penalty (the parties agreeing that Brazos' actual damages would be difficult to predict, but the aforementioned liquidated damages represent a reasonable approximation of such amount) (in lieu of Basic Rent due for periods commencing on or after the Basic Rent Payment Date coinciding with such date of sale (or, if the sale date is not a Basic Rent Payment Date, the Basic Rent Payment Date next preceding the date of such sale)), an amount equal to (A) the excess, if any, of (1) the Acquisition Cost calculated as of such Basic Rent Payment Date (including all Rent due and unpaid to and including such Basic Rent Payment Date), over (2) the net proceeds of such sale, if any (that is, after deducting all reasonable costs and expenses incurred by Brazos, the Agent and the Assignees incident to such conveyance, including, without limitation, repossession costs, brokerage commissions, prorations, transfer taxes, fees and expenses for counsel, title insurance fees, survey costs, recording fees, and any repair or alteration costs); plus (B) all damages, reasonable costs and expense of Brazos under the Ground Lease; plus (C) interest at the overdue rate provided in SECTION 6.3 hereof on the foregoing amount from such Basic Rent Payment Date until the date of payment. Brazos may exercise any other right or remedy that may be available to it under applicable law, or proceed by appropriate court action (legal or equitable) to enforce the terms hereof or to recover damages for the breach hereof. Separate suits may be brought to collect any such damages for any period(s), and such suits shall not in any manner prejudice Brazos' right to collect any such damages for any subsequent period(s), or Brazos may defer any such suit until after the expiration of the Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term. In the event that a court of competent jurisdiction rules that this Facilities Lease constitutes a mortgage, deed of trust or other secured financing as is the intent of the parties pursuant to SECTION 3.3, and subject to the availability of such remedy under applicable law, then Brazos and the Lessee agree that the Lessee hereby grants, bargains, sells, transfers, assigns and conveys unto the trustee named as such in the Lien granted by Brazos to Agent, as trustee and herein referred to as "trustee", and its successors (Brazos hereby reserving the right to from time to time, with or without cause and at Brazos' sole discretion, by instrument in writing, substitute a successor or successors to trustee, which instrument, executed by Brazos duly acknowledged and recorded in the office of the recorder of the county or counties where the Facility is situated, shall be conclusive proof of proper substitution of such successor, who shall, without conveyance from trustee or any successor trustee to trustee, succeed to all his title, estate, rights, powers and duties), in trust a lien and security interest against the Facility, to have and to hold the Facility, together with all and singularly the rights, hereditaments, and appurtenances in any way appertaining or belonging thereto, unto such trustee and such trustee's successor or substitute in such trust, and such trustee's and its or his successors and assigns, in trust, and that, upon the occurrence and during the continuance of any Event of Default such trustee, at the direction of Brazos, may proceed with foreclosure, and in such event such trustee, at the direction of Brazos, is hereby authorized and empowered, and it shall be such trustee's special duty, upon such request of Brazos, acting upon a request from the Agent or Assignees, to sell the Facility, or any part thereof, to the highest bidder or bidders for cash or credit, as directed by Brazos, acting upon a request from the Agent or Assignees, at the location at the county courthouse specified by the commissioner's court in the county in the state wherein the Facility then subject to the lien hereof is situated or, if no such location is specified by the commissioner's court, then at the location specified in such trustee's notice of such sale to the Lessee; provided, that if the Facility is situated in more than one county, then such sale of the Facility, or part thereof, may be made in any county in the state wherein any part of the Facility then subject to the lien hereof is situated. Any such sale shall be made at public outcry between the hours of ten o'clock (10:00) A.M. and four o'clock (4:00) P.M. on the first (1st) Tuesday in any month. Written or printed notice of such sale shall be posted at the courthouse door in the county, or if more than one, then in each of the counties, wherein the Facility then subject to the lien hereof is situated. Such notice shall designate the county where the Facility, or part thereof, will be sold and the earliest time at which the sale will occur, and such notice shall be posted at least twenty-one (21) days prior to the date of sale. Such notice shall also be filed with the county clerk in the county, or if more than one, then in each of the counties wherein the Facility is located. Trustee shall, at least twenty-one (21) days preceding the date of sale, serve written notice of the proposed sale by certified mail on Lessee and each other debtor obligated to pay the Acquisition Cost and other obligations secured hereby according to the records of the Agent and Assignees. After such sale, Brazos shall make to the purchaser or purchasers thereunder good and sufficient assignments, deed, bills of sale, and other instruments, in the name of Brazos, conveying the Facility, or part thereof, so sold to the purchaser or purchasers with general warranty of title by Brazos. The sale of a part of the Facility shall not exhaust the power of sale, but sales may be made from time to time until the Acquisition Cost and other obligations secured hereby are paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the personal property. Upon the occurrence and during the continuance of a Lease Event of Default, Brazos, in lieu of or in addition to exercising any power of sale hereinabove given, may proceed by a suit or suits in equity or at law, whether for a foreclosure hereunder, or for the sale of the Facility, or against the Lessee on a recourse basis for the Acquisition Cost, or the specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for the appointment of a receiver pending any foreclosure hereunder or the sale of the Facility, or for the enforcement of any other appropriate legal or equitable remedy. Sales pursuant to this SECTION 13.2, by Brazos of any part of the Facility, may be by private or public sale, in such order or otherwise in such manner as Brazos may elect in its sole discretion. Brazos shall have, with respect to the FF&E, in addition to any other rights and remedies which may be available to it at law or in equity or pursuant to this Facilities Lease or any other contract or agreement, all rights and remedies of a secured party under the Code. Without limiting the generality any applicable version of the foregoing, each Grantor expressly agrees that in any such event Agent, without demand Uniform Commercial Code of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived relevant jurisdictions relating to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereofFF&E, and may forthwith sell, lease, license, assign, give an option or options it is expressly agreed that if Brazos should proceed to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so)utilize the FF&E, or any part thereof, in one accordance with the provisions of said Uniform Commercial Code, ten (10) days' notice by Brazos to Lessee shall be deemed to be reasonable notice of any such provision requiring such notice. Any sale of FF&E by Brazos may be made on such terms as it may choose, without assuming any credit risk and without any obligation to advertise or more parcels at give notice of any kind other than that necessary under applicable law or otherwise required hereunder. Brazos shall incur no liability as a public result of the sale of the FF&E, or private sale or salesany part thereof, at any exchange at such prices as it may deem acceptable, for cash private or on credit or for future delivery without assumption of any credit riskpublic sale. Agent or any Lender shall have the right upon any such public sale or sales andLessee hereby waives, to the extent permitted by law, upon any claims against Brazos arising by reason of the fact that the price at which the FF&E may have been sold at such private sale was less than the price which may have been obtained at a public sale or saleswas less than the aggregate account of the amounts due from Lessee to Brazos hereunder, even if Brazos accepts the first offer received and does not offer the FF&E to purchase for more than one possible purchaser. No remedy referred to in this SECTION 13.2 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Brazos at law or in equity, and the benefit of Agent and Lenders, the exercise in whole or any in part of said Collateral so sold, free by Brazos of any right one or equity more of redemption, which equity such remedies shall not preclude the simultaneous or later exercise by Brazos of redemption each Grantor hereby releasesany or all such other remedies. 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 each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If No waiver by Brazos of any Event of Default hereunder 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep in any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateralway be, or any part thereofbe construed to be, 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 not have any obligation to any Grantor to maintain or preserve the rights a waiver of any Grantor as against third parties with respect to Collateral while Collateral is in the possession future or subsequent Event 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyDefault.
Appears in 1 contract
Samples: Facilities Lease Agreement (Monro Muffler Brake Inc)
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality do any one or more of the foregoing, each Grantor expressly agrees that in following:
(a) Terminate the lease of the Facility or any such event Agent, without demand or all Property or Equipment leased hereunder;
(b) Whether or not the lease of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor Facility or any other Person (Property or Equipment is terminated, take immediate possession of and remove any or all equipment or property of the Lessor in the possession of the Lessee, wherever situated, and each of which demandsfor such purpose, advertisements and notices are hereby expressly waived enter upon any premises without liability to the maximum extent permitted by Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, sell the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor Facility or any other Person Property or Equipment (with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, maintain, repair, remove, lease or keep idle the Facility or any or all other Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof or to mitigate damages; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of the Facility or any other Unit of Equipment or Parcel of Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and opportunity the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for a hearing the possession of the Facility or any other Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on Agent’s claim account of the Lessee's liability hereunder. Acceptance of the keys to the Facility or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateralany other Parcel of Property, or any part thereofsimilar act, 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)by the Lessor, or any part thereofLessee or employee, during the term hereof, shall not be deemed to be an acceptance of a surrender of the Facility or any other Parcel of Property unless the Lessor shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee, without duplication, (i) all Basic Rent accrued through the date of receipt of all liquidated damages payable upon termination of this Lease and the Debt Yield-Maintenance Premium payable, (ii) any Additional Rent owing, (iii) all amounts payable pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes and all costs and expenses related to (x) the conduct of investigations, studies, sampling and/or testing of the Facility and any other Property and (y) the taking of any action, including, without limitation, any remedial measures or removal with respect to the Facility and any other Property, each as required by the Related Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor or by the Related Assignee by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including without limitation, in one the event of a sale by the Lessor of the Facility or more parcels at any other Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale and (v) all other amounts owing hereunder (after taking into account the application under 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 Financing Arrangement of any credit riskpayments made under this Section 19) excluding, in all cases, costs or expenses included in Acquisition Cost. Agent or The amounts payable in clauses (i) through (v) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After termination of this Lease as a result of an Event of Default pursuant to Section 19(a) hereof, the Lessor may sell its interest in the Facility and any Lender shall have the right other Property and Equipment upon any such public sale or sales and, to terms that 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 soldLessor deems satisfactory, free of any right rights of the Lessee or equity any Person claiming through or under the Lessee (including, without limitation, any rights hereunder). In the event of redemptionany such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. In the case of the sale of the Facility, proceeds of such sale received by the Lessor shall be credited against the Accrued Default Obligations and the Acquisition Cost of the Facility the Lessee is required to pay under this Section 19. In the case of other Property and Equipment, proceeds of sale of such Property and Equipment received by the Lessor shall be credited against the Accrued Default Obligations and the Acquisition Cost of such other Property and Equipment the Lessee is required to pay under this Section 19. If such proceeds, together with any amounts paid by the Lessee under the preceding paragraph, exceed the sum of (i) the Accrued Default Obligations and (ii) the Acquisition Cost of the Facility and all Property and Equipment, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. If the Lessor subsequently sells its interest in the Facility or such other Property or Equipment, the proceeds of any such sale (net of any unreimbursed costs or liabilities incurred by the Lessor or the Related Assignee with respect to the Facility or such other Property or Equipment after the termination of the Lease, which equity are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of redemption each Grantor hereby releasesthis paragraph. Such sales In addition, if the Lessee converts the Facility or any other Property or Equipment or any part thereof after an Event of Default, or if the Facility or any other Property or Equipment is lost or destroyed at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may be adjourned require the Lessee to pay to the Lessor, and continued the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. In the event the Lessor receives indefeasible payment pursuant to this paragraph from the Lessee of the Acquisition Cost of the Facility and all other Property and Equipment and the Accrued Default Obligations, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Facility and such other Property and Equipment to the Lessee. Upon the occurrence and continuance of any Event of Default, the Lessee shall (unless the Lessee has purchased the Facility pursuant to this Section 19), upon the request of the Lessor or the Related Assignee, exercise all commercially reasonable efforts (i) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with all easements, licenses, manuals, manufacturer's warranties and other matters and services necessary to enable the Facility and any Turbine Unit to operate as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed prior to such Event of Default, (ii) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any Governmental Actions and Intellectual Property Rights that are necessary to enable the Facility and any Turbine Unit to operate as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed prior to such Event of Default, (iii) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any other permits or licenses required to enable such party to operate the Facility and any Turbine Unit as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed immediately prior to such Event of Default and (iv) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any other fuel supply agreements, transmission agreements, service agreements and contracts or subcontracts relating to the provision of services, materials, supplies and benefits contemplated by the Facility Support Agreement in existence at such time to time enable such party to operate the Facility and any Turbine Unit as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed immediately prior to such Event of Default. The Lessee's obligations contained in this subsection shall survive the expiration or other termination of this Lease until the Lessor receives payment of (1) all amounts owing pursuant to this Lease, (2) all losses, damages, costs and expenses (including, without noticelimitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor, (3) all amounts owing under all Financing Arrangements and (4) any unreimbursed costs incurred by the Lessor or the Related Assignee with respect to the Facility after the term of this Lease, net of any revenues received from the operation of the Facility. Agent In the event of a sale pursuant to this Section 19, upon indefeasible receipt by the Lessor of the amounts payable hereunder, the Lessor shall have transfer all of the right Lessor's right, title and interest in and to conduct the Facility and all other Property and Equipment to the Lessee or a purchaser other than the Lessee, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such sales on each Grantor’s premises remedies shall not preclude the simultaneous or elsewhere and shall have later exercise by the right to use each Grantor’s premises without charge for Lessor of any or all such time or times as Agent deems necessary or advisableother remedies. If No waiver by the Lessor of any Event of Default hereunder 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep in any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateralway be, or be construed to be, a waiver of any part thereoffuture or subsequent Event of Default. In addition to its other rights in this Section 19, the Lessor may exercise its various rights under the Facility Support Agreement or transfer such rights to the extent that it deems appropriate for purchaser in a sale and the purpose Lessee acknowledges hereby its agreement to perform its obligations thereunder. With respect to the termination of preserving Collateral this Lease as to the Facility or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve Parcel of Property as a result of an Event of Default, the rights Lessee hereby waives service of any Grantor as against third parties with respect notice of intention 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 Grantorre-enter. To the maximum extent permitted by applicable law, each Grantor the Lessee hereby waives any and all claims, damages, and demands against Agent rights to recover or regain possession of the Facility or any Lender arising out other Parcel of the repossessionProperty or to reinstate this Lease as permitted or provided by or under any statute, retention law or sale of the Collateral except such as arise solely out of the gross negligence decision now 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 hereafter in force and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyeffect.
Appears in 1 contract
Samples: Lease Agreement (Keyspan Corp)
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred the Lessor may do any one or more of the following:
(a) Terminate the lease of all Property leased hereunder and require payment of an amount equal to the aggregate outstanding principal amount of all notes outstanding under the Financing Agreement plus accrued interest and fees plus the stated amount of the equity investment made by the Lessor in all such Property, plus any accrued and unpaid return which would be continuingpayable, Agent if the Lease had been in effect through the date of sale, to any general or limited partner of Lessor if Lessor had sufficient funds therefor, plus all other amounts owing under the Financing Agreement and Trust Agreement plus any unpaid fees or expenses of the Lessor and out-of-pocket costs including taxes (other than any such taxes generally excluded from the Lessee's indemnification obligations pursuant to SECTION 11(C) hereof), legal and other expenses of the Lessor associated directly or indirectly with the purchase of the Property or terminations of this Lease in each case for which the Lessee is liable under this Lease or the Acquisition and Construction Agreement (the "TERMINATION PAYMENT"). The Termination Payment will be allocated between the Lessees pro rata according to the Acquisition Cost of the Units leased by each Lessee under this Agreement;
(b) Whether or not the lease of any Property is terminated, take immediate possession of and remove any or all Property and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Property (with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease, sublease or keep idle any or all Property as the Lessor in its sole discretion may exercise all rights determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and remedies in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Notwithstanding anything to the contrary contained herein, if the sole basis for the occurrence of an Event of Default is the occurrence of a secured party Material Adverse Effect unrelated to any misrepresentation or failure to perform a covenant herein or in any other agreement, then the amount payable by the Lessee pursuant to this SECTION 19 shall be the Residual Guaranty Payment for all Units plus all accrued and unpaid Basic Rent and the amounts referred to in the sixth to last paragraph of this SECTION 19; provided, further, that the failure to pay such Residual Guaranty Payment shall be an immediate Event of Default hereunder and the Lessee shall be required to pay the full Termination Payment upon such failure; The receipt of any payments under this Lease by the Code. Without limiting Lessor with knowledge of any breach of this Lease by the generality Lessee or of any default by the Lessee in the performance of any of the foregoingterms, each Grantor expressly agrees that covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any such event Agentlawful manner shall reinstate, continue or extend the Lease Term or any Extended Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Property by proper suit, action, proceedings or remedy, it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without demand of performance in any manner affecting such notice, proceedings, suit, action, order, warrant or other demand, advertisement or notice judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use and operation of any kind (except Unit of Property, or at the notice specified below election of time and place the Lessor, on account of public or private sale) the Lessee's liability hereunder. Acceptance of the keys to or upon any Grantor or any other Person (all and each Unit of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the CollateralProperty, or any part thereofsimilar act, 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)by the Lessor, or any part thereofagent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Unit of Property unless the Lessor shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property leased by the Lessee, (iii) all amounts payable pursuant to SECTIONS 11, 24 and 26 hereof and (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in one or more parcels at the event of 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 by the Lessor of any credit riskProperty pursuant to this SECTION 19, all costs and expenses associated with such sale. Agent or The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may sell its interest in any Lender shall have the right Property upon any such public sale or sales and, to terms that 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 soldLessor deems satisfactory, free of any right or equity rights 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 each Grantor’s premises or elsewhere and shall have the right to use each 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, Lessee or any part thereof, to Person claiming through or under the extent that it deems appropriate for Lessee. In the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any 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 event of any such collectionsale, recovery, receipt, appropriation, realization or sale in addition to the Obligations Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, 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, liquidated damages, and demands against Agent or any Lender arising out of not as a penalty, an amount equal to 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 Acquisition Cost of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Notwithstanding any such notice of saleProperty so sold, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if minus the proceeds of any such sale or disposition received by the Lessor. Proceeds of sale received by the Lessor in excess of the Collateral are insufficient Acquisition Cost of such Property sold shall be credited against the Accrued Default Obligations the Lessee is required to pay all under this SECTION 19. If such proceeds exceed the Accrued Default Obligations, including or,the Lessee is required to pay under this SECTION 19. If such proceeds exceed the Accrued Default Obligations, or, if the Lessee has paid all amounts required to be paid under this SECTION 19, such excess shall be paid by the Lessor to the Lessee. As an alternative to any attorneys’ fees such sale, or if the Lessee converts any Property after an Event of Default, or if such Property is lost or destroyed, in addition to the Accrued Default Obligations, the Lessor may cause the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of such Property. In the event the Lessor receives payment pursuant to the previous sentence of this paragraph, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property to the Lessee. In the event of a sale pursuant to this SECTION 19, upon receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property to the Lessee or purchaser other expenses incurred than the Lessee, as the case may be. With respect to the termination of this Lease as to any Unit of Property as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of any Unit of Property or to reinstate this Lease as permitted or provided by Agent or under any Lender statute, law or decision now or hereafter in force and effect. Notwithstanding anything to collect the contrary set forth in this SECTION 19, upon the payment in full by the Lessee of the Termination Payment and all Accrued Default Obligations, title to all Property and the Lessor's rights under any Ground Leases shall automatically be deemed to vest in the Lessee and the Lessor shall, following the receipt of all such deficiencyamounts, execute, at the Lessee's cost and expense, such bills of sale and other title documents, on an as- is, where-is, basis, as are reasonably requested by the Lessee.
Appears in 1 contract
Rights Upon Default. The Assignee shall have the right to and may receive the Rents, issues, profits and income from said Mortgaged Property, including all Rents covered by this instrument or hereafter made for application on the Secured Indebtednessonly if and in the event the Assignor defaults in, breaches or fails to perform any one or more of the covenants and agreements contained in (a) the Note, (b) the Mortgage, (c) this Assignment or (d) the other Loan Documents, and such is not cured within the applicable curative period, if any, specified in the applicable Loan Document(s). In the event of any such default, breach or failure to perform which is not cured within the period as aforesaid, and the exercise of the Assignee of its right to receive such Rents, issues, profits and income, the amount so received prior to foreclosure sale, less all costs, fees and expenses of collection, including a reasonable attorney's fee, shall be applied on the Loan but any such default, breach or failure to perform, or the exercise by the Assignee of its right to receive the Rents, issues, profits and income, shall not prevent the Assignee from exercising any of its rights under the Loan Documents, including its right to foreclose any mortgage nor any of its other rights under this Assignment. Upon the occurrence of any such default, breach or failure to perform which is not cured within any applicable curative period, as aforesaid, in addition to all other rights, remedies contained herein and the rights and remedies granted provided for in Florida Statutes § 697.07, as amended from time to it under this Agreementtime, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any of the Obligations, if any Event of Default Assignee shall have occurred and be continuing, Agent may exercise from time to time any and all rights and remedies of a secured party under the Code. Without limiting the generality Uniform Commercial Code of the foregoingState of Florida, each Grantor expressly agrees that in any as such event Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 in effect, and any and all other rights and remedies available to it under any other applicable law, including but not limited to, the right to conduct such sales on each Grantor’s premises or elsewhere foreclose this Assignment and the Mortgage in the same proceedings. The security of this Assignment is and shall have be primary and on a parity with the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default shall have occurred real estate encumbered by the Mortgage 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license 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 not have any obligation to any Grantor to maintain or preserve the rights of any 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencysecondary.
Appears in 1 contract
Samples: Assignment of Rents, Leases, Profits and Contracts (Bovie Medical Corp)
Rights Upon Default. In addition to all other rights Upon the occurrence and remedies granted to it under this Agreement, the Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to any continuation of the Obligations, if any Event of Default shall have occurred and be continuing, Agent the Lessor may exercise all rights and remedies of a secured party under the Code. Without limiting the generality do any one or more of the foregoingfollowing (subject to the provisions of paragraph (c) of Section 13 of this Lease):
(a) Terminate the lease of any or all Property or Equipment leased hereunder;
(b) Whether or not the lease of any Property or Equipment is terminated, each Grantor expressly agrees that take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Property or Equipment (with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction or for any proceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any such event Agentlawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without demand of performance in any manner affecting such notice, proceedings, suit, action, order, warrant or other demand, advertisement or notice judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use and operation of any kind (except Unit of Equipment or the notice specified below use, operation and occupation of time and place any Parcel of public Property, or private sale) at the election of the Lessor, on account of the Lessee's liability hereunder. Acceptance of the keys to or upon any Grantor or any other Person (all and each Parcel of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the CollateralProperty, or any part thereofsimilar act, 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)by the Lessor, or any part thereofagent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing. After any Event of Default, the Lessee shall be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable pursuant to Sections 11, 25 and 27 hereof and (iv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in one or more parcels at the event of 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 by the Lessor of any credit riskProperty or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. Agent or The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After an Event of Default, the Lessor may sell (in a commercially reasonable manner) its interest in any Lender shall have the right Property and Equipment upon any such public sale or sales and, to terms that 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 soldLessor deems satisfactory, free of any right rights of the Lessee or equity any Person claiming through or under the Lessee. In the event of redemptionany such sale, which equity in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages, and not as a penalty, an amount equal to the Adjusted Acquisition Cost of redemption each Grantor hereby releasesany Property or Equipment so sold, minus the proceeds of such sale received by the Lessor. Such sales may Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost of such Property or Equipment sold shall be adjourned and continued from time credited against the Accrued Default Obligations the Lessee is required to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisablepay under this Section 19. If such proceeds exceed the Accrued Default Obligations, or, if the Lessee has paid all amounts required to be paid under this Section 19, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, or if the Lessee converts any Property or Equipment after an Event of Default, or if such Property or Equipment is lost or destroyed, in addition to the Accrued Default Obligations, the Lessor may cause the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost of such Property or Equipment. In the event the Lessor receives payment pursuant to the previous sentence of this paragraph, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property and Equipment to the Lessee. In the event of a sale pursuant to this Section 19 to a purchaser other than the Lessee, upon receipt by the Lessor of the proceeds of such sale, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property and Equipment to such purchaser. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor of any Event of Default hereunder 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep in any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateralway be, or be construed to be, a waiver of any part thereof, future or subsequent Event of Default. With respect to the extent that it deems appropriate for the purpose termination of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not have any obligation this Lease as to any Grantor to maintain or preserve Parcel of Property as a result of an Event of Default, the rights Lessee hereby waives service of any Grantor as against third parties with respect notice of intention to Collateral while Collateral is in the re-enter. The Lessee hereby waives any and all rights to recover or regain possession of Agent. Agent mayany Parcel of Property or to reinstate this Lease as permitted or provided by or under any statute, if it so elects, seek the appointment of a receiver law or keeper to take possession of Collateral decision now or hereafter in force 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. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyeffect.
Appears in 1 contract
Samples: Lease Agreement (Seaboard Corp /De/)
Rights Upon Default. In 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to all exercising any other rights and remedies granted available to it under this Agreementapplicable law, the Credit Agreement, the other Loan Documents and under do any other instrument one or agreement securing, evidencing or relating to any more of the Obligationsfollowing (if, if any within fifteen (15) Business Days of receipt by the Lessee of an Event of Default shall have occurred Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and be continuingUnits of Equipment under Section 29(l) or, Agent may exercise all rights and remedies if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of a secured party under the Code. Without limiting the generality receipt of the foregoing, each Grantor expressly agrees that Event of Default Notice such purchase in any such event Agent, without demand of performance or other demand, advertisement or notice full compliance with Section 29(l)):
(a) Terminate the lease of any kind or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (except f) of this Section 19;
(b) Whether or not the notice specified below lease of time any Property or Equipment is terminated, take immediate possession of and place remove any or all Equipment and other equipment or property of public or private sale) to or the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any Grantor premises without liability to the Lessee for so doing; provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other Person person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all and each of which demandsProperty or Equipment as the Lessor in its sole discretion may determine, advertisements and notices are hereby expressly waived without any duty to account to the maximum extent permitted Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, 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 Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or without notice. Agent of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall have not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to conduct such sales on each Grantor’s premises enforce the payment of Basic Rent or elsewhere and shall have Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use each Grantor’s premises without charge for such time and operation of any Unit of Equipment or times as Agent deems necessary the use, operation and occupation of any Parcel of Property, or advisableat the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. If Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after 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. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by AgentDefault, and while Collateral is so stored notwithstanding any termination of this Lease or keptreentry or repossession by the Lessor, provide such guards the Lessee shall continue to be liable for, and maintenance services as shall be necessary to protect the same and to preserve and maintain Collateral in good condition. Until Agent is able to effect a saleLessor may recover from the Lessee, lease, license or other disposition of Collateral, Agent shall have the right to hold or use Collateral, or any part thereof, (i) all Basic Rent accrued to the extent that it deems appropriate for the purpose date of preserving Collateral or its value or for payment, (ii) any other purpose deemed appropriate by Agent. Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties Additional Rent owing with respect to Collateral while Collateral is in all Property or Equipment leased by the possession of Agent. Agent mayLessee, if it so elects, seek the appointment of a receiver (iii) all amounts payable hereunder 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 under 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 Operative Document and (iv) all claimslosses, damages, costs and demands against Agent expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or any Lender arising out transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the repossessionLessor's remedies with respect thereto, retention or including, in the event of a sale of by 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 Lessor of any public sale Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the time after which a private sale may take place is reasonable notification prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such matters. Notwithstanding any such notice of sale, Agent shall not be obligated to make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith Property and Agent shall have no obligation to provide any warranties at such time. Each Grantor 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 or other expenses incurred by Agent or any Lender to collect such deficiencyEquipment.
Appears in 1 contract
Samples: Lease Agreement (Potash Corporation of Saskatchewan Inc)
