Sale of the Collateral. With respect to any sale or disposition of any ---------------------- of the Collateral, whether made under the power of sale in this Agreement, under any applicable provisions of the California Commercial Code or other applicable law, or under judgment or order or decree in any judicial proceeding for the foreclosure of Secured Party's security interest or involving the enforcement of this Agreement: A. The Collateral may be sold, resold, assigned or delivered in one or more parcels, at the same or at different times, at public or private sale or at any broker's board or on any securities exchange if publicly traded at the time of the sale, for cash or on credit or for other property, for immediate or future delivery, and at such price(s) and on such terms as Secured Party may determine in its sole discretion, so long as such disposition is commercially reasonable. Without precluding any other methods of sale, the sale of the Collateral shall be deemed made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks or other financial institutions when disposing of similar property. B. Secured Party agrees to give Debtor not less than fifteen (15) business days prior written notice of the time and place of any non-judicial public sale of the Collateral and not less than fifteen (15) days prior written notice of the date after which Secured Party will effect a private sale of the Collateral. Debtor hereby waives any and all other demands, advertisements or notices except as required by law. In the case of any sale at a broker's board or on a securities exchange, the notice required by this subsection B shall identify the board or exchange at which such sale is to be made and the day on which the Collateral (or a portion thereof) will first be offered for sale. Any public sale of any of the Collateral shall be held at such time or times within ordinary business hours at such place or places as Secured Party may state in the notice or publication (if any) of such sale. C. Secured Party shall not be obligated to sell any of the Collateral if it determines not to do so, notwithstanding that notice of a sale of such Collateral may have been given. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made, without further notice, at the time and place identified in such announcement. In case of any sale of all or any part of the Collateral on credit or for future delivery, Secured Party may retain the Collateral sold until the sales price is paid by the purchaser(s) thereof, but Secured Party shall not incur any liability if any such purchaser shall fail to take up and pay for the Collateral so sold, in which case such Collateral may again be sold upon like notice. D. Debtor understands that applicable federal and state laws restricting and imposing requirements on the sales of securities to the general public (the "Securities Laws") may affect the disposition of any securities and that Secured Party's concern that its sale or disposition of any such securities be in compliance with the Securities Laws may limit Secured Party's course of conduct in disposing or attempting to dispose of all or any part of such securities, and may also limit the extent to which or the manner in which any subsequent transferee may dispose of the same. Consequently, Debtor agrees that Secured Party may, in selling or disposing of any such securities, proceed in such manner and under such circumstances as it may deem necessary or advisable to assure compliance with all Securities Laws. Without limiting the generality of the foregoing, the Secured Party may, subject to compliance with applicable law, in its discretion: i) sell privately any such securities notwithstanding that such securities may be qualified or registered for sale to the general public; ii) approach and negotiate with a restricted number of potential purchasers to effect such sale; and iii) restrict such sale to purchasers as to their number, nature of business and investment intention (including, without limitation, to purchasers each of whom will represent and agree to the satisfaction of Secured Party that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such securities or part thereof), it being understood that Secured Party may require Debtor, and Debtor hereby agrees upon the written request of Secured Party to cause: a) a legend or legends to be placed on the certificates or Instruments to be delivered to such purchasers to the effect that the securities represented thereby have not been registered under the Securities Laws and setting forth or referring to restrictions on the transferability of such securities; b) the issuance of stock transfer instructions to the issuer's transfer agent, if any, with respect to such securities, or, if the issuer transfers its own securities, a notation in the appropriate records of such issuer; and to be delivered to the purchasers a signed acknowledgment of the issuer of such securities that, as concerns such securities, such purchasers shall be entitled to the rights of Debtor by virtue of their purchase of such securities from Secured Party. E. Debtor agrees, if requested by Secured Party, at Debtor's sole expense to take (and to cause any Issuer(s) of securities pledged and assigned hereunder to take) such actions, render such assistance and prepare, distribute and/or file such documents as Secured Party or its legal counsel may reasonably request in connection with the private or public sale of such securities. Debtor agrees to indemnify and hold harmless Secured Party and any underwriter against all loss, liability, expenses or claims (including the reasonable cost of any investigation) which any of them may incur in connection with the sale of such securities to the extent that such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact by Debtor contained in any registration statement, prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact by Debtor required to be stated therein or necessary to make the statements therein not misleading, except to the extent due to the gross negligence or willful misconduct of Secured Party or any such underwriter. F. Secured Party may, to the fullest extent permitted by applicable law, bid for and purchase the Collateral in a commercially reasonable manner, and upon compliance with the terms of sale may hold, retain and possess and dispose of the same in its own absolute right. G. Upon consummation of any sale, Secured Party shall have the right to assign, transfer, endorse, convey and deliver to the respective purchaser(s) the Collateral or portion thereof so sold. H. A sale of the Collateral shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of Debtor, including Debtors right to claim a percentage or royalty from the profits or proceeds derived from the Collateral and shall be a perpetual bar both at law and in equity against Debtor and Debtor's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral from, through or under any of them. I. To the fullest extent permitted by law, Debtor hereby waives any claims against Secured Party arising with respect to any decrease in the market value of any Collateral during the period held for sale, or arising by reason of the possibility that the price at which the Collateral may have been sold was less that the price that might have been obtained had the sale been otherwise effected. J. Secured Party shall have no obligation whatsoever to resort first to any other security which Secured Party may hold for the Obligations. Secured Party shall not incur any liability to Debtor as a result of the sale of any Collateral at any private sale conducted in a commercially reasonable manner, or as a result of any failure to sell or offer for sale any Collateral for any reason whatsoever or to exercise any other right, privilege, option or power to the fullest extent permitted by law granted to Secured Party hereunder. K. A written agreement to sell any Collateral, which agreement Secured Party in good xxxxx xxxxx itself bound to perform, shall be treated as a sale of such Collateral and Secured Party shall be free to carry out such agreement. If such an agreement is then effective, Debtor shall not be entitled to the return of any Collateral subject thereto, even if after the date of such agreement all Events of Default shall have been cured or the Obligations shall have been fully paid and performed. L. After deducting all costs and expenses of every kind for taking, retaking, care, safekeeping, collecting, holding, preparing for sale, selling, delivering and the like (including legal costs, insurance, commission for sale, and reasonable attorney's fees) and all other charges against the Collateral, Secured Party shall apply the residue of the proceeds of any such sale or other disposition against any and all amounts remaining unpaid under the Obligations, all in such order of priority as Secured Party may determine in its sole and reasonable discretion.
Appears in 2 contracts
Samples: Security Agreement (Grand Havana Enterprises Inc), Security Agreement (Grand Havana Enterprises Inc)
Sale of the Collateral. With respect to any sale or disposition of any ---------------------- of the Collateral, whether made under the power of sale in this Agreement, under any applicable provisions of the California Commercial Code U.C.C. or other applicable law, or under judgment or order or decree in any judicial proceeding for the foreclosure of Secured Partythe Lender's security interest or involving the enforcement of this Agreement:
A. (a) The Collateral may be sold, resold, assigned or delivered in one or more parcels, at the same or at different times, at public or private sale or at any broker's board or on any securities exchange if publicly traded at the time of the saleexchange, for cash or on credit or for other property, for immediate or future delivery, and at such price(s) and on such terms as Secured Party the Lender may determine in its sole discretion, so long as such disposition is commercially reasonable. Without precluding any other methods of sale, the sale of the Collateral shall be deemed made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks or other financial institutions when disposing of similar property.
B. Secured Party agrees (b) To the fullest extent permitted by law, the Company hereby waives any and all demand, advertisement or notice (except as required by law), and any notification required by law with respect to give Debtor not less than fifteen (15) business days prior written notice of the time and place of any non-judicial public such sale of the Collateral and not less than fifteen or disposition shall be deemed reasonable if given at least five (155) days prior written before the time thereof, but notice of the date after which Secured Party will effect a private sale of the Collateral. Debtor hereby waives given in any and all other demands, advertisements or notices except as required by lawreasonable manner shall also be sufficient. In the case of any sale at a broker's board or on a securities exchange, the notice required by this subsection B shall identify the board or exchange at which such sale is to be made and the day on which the Collateral (or a portion thereof) will first be offered for sale. Any public sale of any of the Collateral shall be held at such time or times within ordinary business hours at such place or places as Secured Party the Lender may state in the notice or publication (if any) of such sale.
C. Secured Party (c) The Lender shall not be obligated to sell any of the Collateral if it determines not to do so, notwithstanding that notice of a sale of such Collateral may have been given. Secured Party The Lender may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made, without further notice, at the time and place identified in such announcement. In case of any sale of all or any part of the Collateral on credit or for future delivery, Secured Party the Lender may retain the Collateral sold until the sales price is paid by the purchaser(s) thereof, but Secured Party the Lender shall not incur any liability if any such purchaser shall fail to take up and pay for the Collateral so sold, in which case such Collateral may again be sold upon like notice.
D. Debtor understands that applicable federal and state laws restricting and imposing requirements on the sales of securities to the general public (the "Securities Laws"d) may affect the disposition of any securities and that Secured Party's concern that its sale or disposition of any such securities be in compliance with the Securities Laws may limit Secured Party's course of conduct in disposing or attempting to dispose of all or any part of such securities, and may also limit the extent to which or the manner in which any subsequent transferee may dispose of the same. Consequently, Debtor agrees that Secured Party may, in selling or disposing of any such securities, proceed in such manner and under such circumstances as it may deem necessary or advisable to assure compliance with all Securities Laws. Without limiting the generality of the foregoing, the Secured Party may, subject to compliance with applicable law, in its discretion: i) sell privately any such securities notwithstanding that such securities may be qualified or registered for sale to the general public; ii) approach and negotiate with a restricted number of potential purchasers to effect such sale; and iii) restrict such sale to purchasers as to their number, nature of business and investment intention (including, without limitation, to purchasers each of whom will represent and agree to the satisfaction of Secured Party that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such securities or part thereof), it being understood that Secured Party may require Debtor, and Debtor hereby agrees upon the written request of Secured Party to cause: a) a legend or legends to be placed on the certificates or Instruments to be delivered to such purchasers to the effect that the securities represented thereby have not been registered under the Securities Laws and setting forth or referring to restrictions on the transferability of such securities; b) the issuance of stock transfer instructions to the issuer's transfer agent, if any, with respect to such securities, or, if the issuer transfers its own securities, a notation in the appropriate records of such issuer; and to be delivered to the purchasers a signed acknowledgment of the issuer of such securities that, as concerns such securities, such purchasers shall be entitled to the rights of Debtor by virtue of their purchase of such securities from Secured Party.
E. Debtor agrees, if requested by Secured Party, at Debtor's sole expense to take (and to cause any Issuer(s) of securities pledged and assigned hereunder to take) such actions, render such assistance and prepare, distribute and/or file such documents as Secured Party or its legal counsel may reasonably request in connection with the private or public sale of such securities. Debtor agrees to indemnify and hold harmless Secured Party and any underwriter against all loss, liability, expenses or claims (including the reasonable cost of any investigation) which any of them may incur in connection with the sale of such securities to the extent that such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact by Debtor contained in any registration statement, prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact by Debtor required to be stated therein or necessary to make the statements therein not misleading, except to the extent due to the gross negligence or willful misconduct of Secured Party or any such underwriter.
F. Secured Party The Lender may, to the fullest extent permitted by applicable law, bid for and purchase all or any part of the Collateral in a commercially reasonable manner, and upon compliance with the terms of sale may hold, retain and possess and dispose of the same in its own absolute rightright without further accountability. The Lender may credit all or any part of the Obligations against the purchase price(s) so bid, and may deliver any notes or instruments evidencing any of the Obligations in payment of such purchase price(s); if the amounts then owing under any such notes or instruments exceed such purchase price(s), then the same shall be returned to the Lender after due notation of the partial discharge thereof.
G. (e) Upon consummation of any sale, Secured Party the Lender shall have the right to assign, transfer, endorse, convey endorse and deliver to the respective purchaser(s) the Collateral or portion thereof so sold.
H. A sale . The Lender is hereby irrevocably appointed the Company's true and lawful attomey-in-fact (which appointment is coupled with an interest) in the Company's name and stead, with power of substitution, to make all necessary bills of sale, endorsements and instruments of assignment and transfer of the Collateral thus sold, and for such other purposes as the Lender may deem necessary or desirable to effectuate the provisions of this Agreement. If so requested by the Lender or by any other person, the Company shall ratify and confirm the acts of the Lender (and/or any substitute) as the Company's attorney-in-fact.
(f) Such sale shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of Debtor, including Debtors right the Company in and to claim a percentage or royalty from the profits or proceeds derived from the Collateral sold and shall be a perpetual bar both at law and in equity against Debtor the Company and Debtorthe Company's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral from, through or under any of them.
I. (g) A receipt given by the Lender (or its designated agent) shall be a sufficient discharge to the purchaser(s) at such sale for his or their purchase money, and none of them shall, after such payment and receipt, be obliged to see to the application of such purchase money or be answerable for any loss, misapplication or non-application thereof.
(h) To the extent that the Company may lawfully do so, the Company agrees not at any time nor in any manner to insist upon, plead, claim or take the benefit or advantage of any appraisement, valuation, stay, extension or redemption laws, or any law permitting the Company to direct the order in which all or any part of the Collateral shall be sold, which may delay, prevent or otherwise affect the performance or enforcement of this Agreement; to the fullest extent permitted by law, Debtor the Company hereby expressly waives any claims against Secured Party arising with respect to any decrease in the market value all benefit or advantage of any Collateral during such laws now or at any time hereafter in force and hereby covenants not to hinder, delay or impede the period held for saleexecution of any power granted or delegated to the Lender in this Agreement, or arising by reason but will suffer and permit the execution of the possibility that the price at which the Collateral may have been sold was less that the price that might have been obtained had the sale been otherwise effectedevery such power as though no such laws were in force.
J. Secured Party (i) The Lender shall have no obligation whatsoever to resort first to any other security which Secured Party the Lender may hold for the Obligations. Secured Party The Lender shall not incur any liability to Debtor the Company as a result of the sale of any Collateral at any private sale conducted in a commercially reasonable manner, or as a result of any failure to sell or offer for sale any Collateral for any reason whatsoever or to exercise any other right, privilege, option or power granted to the Lender hereunder. To the fullest extent permitted by law granted law, the Company hereby waives any claims against the Lender arising with respect to Secured Party hereunderany decrease in the market value of any Collateral during the period held for sale, or arising by reason of the possibility that the price at which the Collateral may have been sold was less than the price that might have been obtained had the sale been otherwise effected, even if the Lender accepts the first offer received and/or does not offer the Collateral to more than one offeree and/or limits those who may bid at any public or private sale as set forth in this Agreement.
K. (j) A written agreement to sell any CollateralCollateral under the provisions hereof, which agreement Secured Party the Lender in good xxxxx xxxxx itself bound to perform, shall be treated as a sale of such Collateral and Secured Party the Lender shall be free to carry out such agreement. If such an agreement is then effective, Debtor the Company shall not be entitled to the return of any Collateral subject thereto, even if after the date of such agreement all Events of Default shall have been cured or the Obligations shall have been fully paid and performed.
L. (k) After deducting all costs and expenses of every kind for taking, retaking, care, safekeeping, collecting, holding, preparing for sale, selling, delivering and the like (including legal costs, insurance, commission for sale, and reasonable attorney's fees) and all other charges against the Collateral, Secured Party the Lender shall apply the residue of the proceeds of any such sale or other disposition against any and all amounts remaining unpaid under the Obligations, all in such order of priority as Secured Party the Lender may determine in its sole discretion. The Company shall remain liable for any deficiency remaining after such application, and reasonable discretionany surplus shall be returned to the Company.
Appears in 1 contract
Samples: Loan and Security Agreement (American Quantum Cycles Inc)
Sale of the Collateral. With respect to any sale or disposition of any ---------------------- of the CollateralCollateral provided for under this Agreement, whether made under the power of sale in this Agreement, under any applicable provisions of the California Florida Uniform Commercial Code or other applicable law, or under judgment or order or decree in any judicial proceeding for the foreclosure of Secured Party's security interest or involving the enforcement of this Agreement:
A. (a) The Collateral may be sold, resold, assigned or delivered in one or more parcels, at the same or at different times, in whole or in part, at public or private sale or at any broker's board or on any securities exchange if publicly traded at the time of the saleexchange, for cash or on credit or for other property, for immediate or future delivery, and at such price(s) and on such terms as Secured Party may determine in its sole discretion, so long as such disposition is commercially reasonable. Without precluding any other methods of sale, the sale of the Collateral shall be deemed made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks or other financial institutions when disposing of similar property.
B. Secured Party agrees to give Debtor not less than fifteen (15b) business days prior written notice of the time and place of any non-judicial public sale of the Collateral and not less than fifteen (15) days prior written notice of the date after which Secured Party will effect a private sale of the Collateral. Debtor hereby waives any and all other demandsdemand, advertisements advertisement or notices notice (except as required by law), and any notification required by law with respect to the time and place of such sale or disposition shall be deemed reasonable if given at least fifteen (15) days before the time thereof, but notice given in any other reasonable manner shall also be sufficient. In the case of any sale at a broker's board or on a securities exchange, the notice required by this subsection B shall identify the board or exchange at which such sale is to be made and the day on which the Collateral (or a portion thereof) will first be offered for sale. Any public sale of any of the Collateral shall be held at such time or times within ordinary business hours at such place or places as Secured Party may state in the notice or publication (if any) of such sale.
C. (c) Secured Party shall not be obligated to sell any of the Collateral if it determines not to do so, notwithstanding that notice of a sale of such Collateral may have been given. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made, without further notice, at the time and place identified in such announcement. In case of any sale of all or any part of the Collateral on credit or for future delivery, Secured Party may retain the Collateral sold until the sales price is paid by the purchaser(s) thereof, but Secured Party shall not incur any liability if any such purchaser shall fail to take up and pay for the Collateral so sold, in which case such Collateral may again be sold upon like notice.
D. (d) Debtor understands that applicable federal and state laws restricting and imposing requirements and restrictions on and the sales of bank securities to the general public (the "Banking and Securities Laws") may affect the disposition of any securities Securities and that Secured Party's concern that its sale or disposition of any such securities Securities be in compliance with the Banking and Securities Laws may very strictly limit Secured Party's course of conduct in disposing or attempting to dispose of all or any part of such securitiesSecurities, and may also limit the extent to which or the manner in which any subsequent transferee may dispose of the same. Consequently, Debtor agrees that Secured Party may, in selling or disposing of any such securities, Securities proceed in such manner and under such circumstances as it may deem reasonably necessary or advisable to assure compliance with all the Banking and Securities Laws. Without limiting the generality of the foregoing, the Secured Party may, subject to compliance with applicable law, in its sole and absolute discretion: (i) sell privately any such securities Securities notwithstanding that such securities Securities may be qualified or registered for sale to the general public; (ii) approach and negotiate with a restricted number of potential purchasers to effect such sale; and (iii) restrict such sale to purchasers as to their number, nature of business and investment intention (including, without limitation, to purchasers each of whom will represent and agree to the satisfaction of Secured Party that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such securities Securities or part thereof), it being understood that Secured Party may require Debtor, and Debtor hereby agrees upon the written request of authorizes Secured Party Party, to cause: a) cause a legend or legends to be placed on the certificates or Instruments to be delivered to such purchasers to the effect that the securities Securities represented thereby have not been registered under the Banking and Securities Laws and setting forth or referring to restrictions on the transferability of such securities; b) the issuance of stock transfer instructions to the issuer's transfer agent, if any, with respect to such securities, or, if the issuer transfers its own securities, a notation in the appropriate records of such issuer; and to be delivered to the purchasers a signed acknowledgment of the issuer of such securities that, as concerns such securities, such purchasers shall be entitled to the rights of Debtor by virtue of their purchase of such securities from Secured PartySecurities.
E. (e) Debtor agrees, if requested by Secured Party, at Debtor's sole expense to take (to, and to cause any Issuer(s) of securities pledged and assigned hereunder to take) such actionsColonial Bank to, render such reasonable assistance and prepare, distribute and/or file such documents as Secured Party or its legal counsel may reasonably request in connection with the private or public sale of such securitiesSecurities. Debtor agrees to indemnify and hold harmless Secured Party and any underwriter against all loss, liability, expenses or claims (including the reasonable cost of any investigation) which any of them may incur in connection with the sale of such securities Securities to the extent that such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact by Debtor contained in any registration statement, prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged intentional omission to state a material fact by Debtor required to be stated therein or necessary to make the statements therein not misleading, except to the extent due to the gross negligence or willful misconduct of Secured Party or any such underwriter.
F. (f) Secured Party may, to the fullest extent permitted by applicable law, bid for and purchase the Collateral in a commercially reasonable manner, and upon compliance with the terms of sale may hold, retain and possess and dispose of the same in its own absolute rightright without further accountability. Secured Party may credit all or any part of the Obligations against the purchase price(s) so bid, and may deliver any notes or instruments evidencing any of the Obligations in payment of such purchase price(s); if the amounts then owing under any such notes or instruments exceed such purchase price(s), then the same shall be returned to Secured Party after due notation of the partial discharge thereof.
G. (g) Upon consummation of any sale, Secured Party shall have the right to assign, transfer, endorse, convey and deliver to the respective purchaser(s) the Collateral or portion thereof so sold.
H. A sale . Secured Party is hereby irrevocably appointed Debtor's true and lawful attorney-in-fact (which appointment is coupled with an interest) in Debtor's name and stead, with power of substitution, to make all necessary bills of sale, endorsements and instruments of assignment and transfer of the Collateral thus sold, and for such other purposes as Secured Party may deem necessary or desirable to effectuate the provisions of this Agreement or any other Loan Document. If so requested by Secured Party or by any other person, Debtor shall ratify and confirm the acts of Secured Party (and/or any substitute) as Debtor's attorney-in-fact.
(h) Such sale shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of Debtor, including Debtors right Debtor in and to claim a percentage or royalty from the profits or proceeds derived from the Collateral sold and shall be a perpetual bar both at law and in equity against Debtor and Debtor's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral from, through or under any of them.
I. To the fullest extent permitted (i) A receipt given by law, Debtor hereby waives any claims against Secured Party arising with respect (or its designated agent) shall be a sufficient discharge to the purchaser(s) at such sale for his or their purchase money, and none of them shall, after such payment and receipt, be obliged to see to the application of such purchase money or be answerable for any decrease in the market value of any Collateral during the period held for saleloss, misapplication or arising by reason of the possibility that the price at which the Collateral may have been sold was less that the price that might have been obtained had the sale been otherwise effectednon-application thereof.
J. (j) Secured Party shall have no obligation whatsoever to resort first to any other security which Secured Party may hold for the Obligations. Secured Party shall not incur any liability to Debtor as a result of the sale of any Collateral at any private sale conducted in a commercially reasonable manner, or as a result of any failure to sell or offer for sale any Collateral for any reason whatsoever or to exercise any other right, privilege, option or power to the fullest extent permitted by law granted to Secured Party hereunder.
K. A written agreement to sell any Collateral, which agreement Secured Party in good xxxxx xxxxx itself bound to perform, shall be treated as a sale of such Collateral and Secured Party shall be free to carry out such agreement. If such an agreement is then effective, Debtor shall not be entitled to the return of any Collateral subject thereto, even if after the date of such agreement all Events of Default shall have been cured or the Obligations shall have been fully paid and performed.
L. After deducting all costs and expenses of every kind for taking, retaking, care, safekeeping, collecting, holding, preparing for sale, selling, delivering and the like (including legal costs, insurance, commission for sale, and reasonable attorney's fees) and all other charges against the Collateral, Secured Party shall apply the residue of the proceeds of any such sale or other disposition against any and all amounts remaining unpaid under the Obligations, all in such order of priority as Secured Party may determine in its sole and reasonable discretion.incur
Appears in 1 contract
Samples: General Security Agreement (Colonial Bancgroup Inc)
Sale of the Collateral. With respect to any sale or disposition of any ---------------------- of the Collateral, whether made under the power of sale in this Agreement, under any applicable provisions of the California Florida Uniform Commercial Code or other applicable law, or under judgment or order or decree in any judicial proceeding for the foreclosure of the Secured Party's security interest or involving the enforcement of this Agreement:
A. (a) The Collateral may be sold, resold, assigned or delivered in one or more parcelsdelivered, at the same or at different times, at public or private sale or at any broker's board or on any securities exchange if publicly traded at the time of the sale, for cash or on credit or for other property, for immediate or future delivery, and at such price(s) price and on such terms as the Secured Party may determine in its sole discretion, so long as such disposition is commercially reasonable. Without precluding any other methods of sale, the sale of the Collateral shall be deemed made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks or other financial institutions when disposing of similar property.
B. (b) The Secured Party agrees to give Debtor the Pledgor not less than fifteen five (155) business days prior written notice of the time and place of any non-judicial public sale of the Collateral and not less than fifteen five (155) days prior written notice of the date after which the Secured Party will effect a private sale of the Collateral. Debtor The Pledgor hereby waives any and all other demands, advertisements or notices except as required by law. In the case of any sale at a broker's board or on a securities exchange, the notice required by this subsection B shall identify the board or exchange at which such sale is to be made and the day on which the Collateral (or a portion thereof) will first be offered for sale. Any public sale of any of the Collateral shall be held at such time or times within ordinary business hours at such place or places as the Secured Party may state in the notice or publication (if any) of such sale.
C. (c) The Secured Party shall not be obligated to sell any of the Collateral if it determines not to do so, notwithstanding that notice of a sale of such Collateral may have been given. The Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made, without further notice, at the time and place identified in such announcement. In case of any .
(d) A sale of the Collateral shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of the Pledgor in and to the Collateral sold and shall be a perpetual bar both at law and in equity against the Pledgor and the Pledgor's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral on credit from, through or for future delivery, Secured Party may retain the Collateral sold until the sales price is paid by the purchaser(s) thereof, but Secured Party shall not incur under any liability if any such purchaser shall fail to take up and pay for the Collateral so sold, in which case such Collateral may again be sold upon like noticeof them.
D. Debtor understands that applicable federal and state laws restricting and imposing requirements on the sales of securities to the general public (the "Securities Laws"e) may affect the disposition of any securities and that Secured Party's concern that its sale or disposition of any such securities be in compliance with the Securities Laws may limit Secured Party's course of conduct in disposing or attempting to dispose of all or any part of such securities, and may also limit the extent to which or the manner in which any subsequent transferee may dispose of the same. Consequently, Debtor agrees that Secured Party may, in selling or disposing of any such securities, proceed in such manner and under such circumstances as it may deem necessary or advisable to assure compliance with all Securities Laws. Without limiting the generality of the foregoing, the Secured Party may, subject to compliance with applicable law, in its discretion: i) sell privately any such securities notwithstanding that such securities may be qualified or registered for sale to the general public; ii) approach and negotiate with a restricted number of potential purchasers to effect such sale; and iii) restrict such sale to purchasers as to their number, nature of business and investment intention (including, without limitation, to purchasers each of whom will represent and agree to the satisfaction of Secured Party that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such securities or part thereof), it being understood that Secured Party may require Debtor, and Debtor hereby agrees upon the written request of Secured Party to cause: a) a legend or legends to be placed on the certificates or Instruments to be delivered to such purchasers to the effect that the securities represented thereby have not been registered under the Securities Laws and setting forth or referring to restrictions on the transferability of such securities; b) the issuance of stock transfer instructions to the issuer's transfer agent, if any, with respect to such securities, or, if the issuer transfers its own securities, a notation in the appropriate records of such issuer; and to be delivered to the purchasers a signed acknowledgment of the issuer of such securities that, as concerns such securities, such purchasers shall be entitled to the rights of Debtor by virtue of their purchase of such securities from Secured Party.
E. Debtor agrees, if requested by Secured Party, at Debtor's sole expense to take (and to cause any Issuer(s) of securities pledged and assigned hereunder to take) such actions, render such assistance and prepare, distribute and/or file such documents as Secured Party or its legal counsel may reasonably request in connection with the private or public sale of such securities. Debtor agrees to indemnify and hold harmless Secured Party and any underwriter against all loss, liability, expenses or claims (including the reasonable cost of any investigation) which any of them may incur in connection with the sale of such securities to the extent that such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact by Debtor contained in any registration statement, prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact by Debtor required to be stated therein or necessary to make the statements therein not misleading, except to the extent due to the gross negligence or willful misconduct of Secured Party or any such underwriter.
F. The Secured Party may, to the fullest extent permitted by applicable law, bid for and purchase the Collateral in a commercially reasonable manner, and upon compliance with the terms of sale may hold, retain and possess and dispose of the same in its own absolute right.
G. Upon consummation of any sale, Secured Party shall have the right to assign, transfer, endorse, convey and deliver to the respective purchaser(s(f) the Collateral or portion thereof so sold.
H. A sale of the Collateral shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of Debtor, including Debtors right to claim a percentage or royalty from the profits or proceeds derived from the Collateral and shall be a perpetual bar both at law and in equity against Debtor and Debtor's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral from, through or under any of them.
I. To the fullest extent permitted by law, Debtor the Pledgor hereby waives any claims against the Secured Party arising with respect to any decrease in the market value of any the Collateral during the period held for sale, or arising by reason of the possibility that the price at which the Collateral may have been sold was less that than the price that might have been obtained had the sale been otherwise effected.
J. (g) The Secured Party shall have no obligation whatsoever to resort first to any other security which the Secured Party may hold for the Obligations. The Secured Party shall not incur any liability to Debtor the Pledgor as a result of the sale of any Collateral at any private sale conducted in a commercially reasonable manner, or as a result of any failure to sell or offer for sale any the Collateral for any reason whatsoever or to exercise any other right, privilege, option or power to the fullest extent permitted by law granted to the Secured Party hereunder.
K. A written agreement to sell any Collateral, which agreement Secured Party in good xxxxx xxxxx itself bound to perform, shall be treated as a sale of such Collateral and Secured Party shall be free to carry out such agreement. If such an agreement is then effective, Debtor shall not be entitled to the return of any Collateral subject thereto, even if after the date of such agreement all Events of Default shall have been cured or the Obligations shall have been fully paid and performed.
L. (h) After deducting all costs and expenses of every kind for taking, retaking, care, safekeeping, collecting, holding, preparing for sale, selling, delivering and the like (including legal costs, insurance, commission for sale, and reasonable attorney's fees) and all other charges against the Collateral, the Secured Party shall apply the residue of the proceeds of any such sale or other disposition against any and all amounts remaining unpaid under the Obligations, all in such order of priority as the Secured Party may determine in its sole and reasonable discretion.
Appears in 1 contract
Samples: Pledge Agreement (Intercallnet Inc)
Sale of the Collateral. With respect to any sale or disposition of any ---------------------- of the Collateral, whether made under the power of sale in this Agreement, under any applicable provisions of the California Florida Uniform Commercial Code or other applicable law, or under judgment or order or decree in any judicial proceeding for the foreclosure of Secured Party's security interest or involving the enforcement of this Agreement:
A. (a) The Collateral may be sold, resold, assigned or delivered in one or more parcels, at the same or at different times, at public or private sale or at any broker's board or on any securities exchange if publicly traded at the time of the saleexchange, for cash or on credit or for other property, for immediate or future delivery, and at such price(s) and on such terms as Secured Party may determine in its sole discretion, so long as such disposition is commercially reasonable. Without precluding any other methods of sale, the sale of the Collateral shall be deemed made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks or other financial institutions when disposing of similar property.
B. Secured Party agrees to give Debtor not less than fifteen (15b) business days prior written notice of the time and place of any non-judicial public sale of the Collateral and not less than fifteen (15) days prior written notice of the date after which Secured Party will effect a private sale of the Collateral. Debtor hereby waives any and all other demandsdemand, advertisements advertisement or notices notice (except as required by law), and any notification required by law with respect to the time and place of such sale or disposition shall be deemed reasonable if given at least five (5) days before the time thereof, but notice given in any other reasonable manner shall also be sufficient. In the case of any sale at a broker's board or on a securities exchange, the notice required by this subsection B shall identify the board or exchange at which such sale is to be made and the day on which the Collateral (or a portion thereof) will first be offered for sale. Any public sale of any of the Collateral shall be held at such time or times within ordinary business hours at such place or places as Secured Party may state in the notice or publication (if any) of such sale.
C. (c) Secured Party shall not be obligated to sell any of the Collateral if it determines not to do so, notwithstanding that notice of a sale of such Collateral may have been given. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made, without further notice, at the time and place identified in such announcement. In case of any sale of all or any part of the Collateral on credit or for future delivery, Secured Party may retain the Collateral sold until the sales price is paid by the purchaser(s) thereof, but Secured Party shall not incur any liability if any such purchaser shall fail to take up and pay for the Collateral so sold, in which case such Collateral may again be sold upon like notice.
D. (d) Debtor understands that applicable federal and state laws restricting and imposing requirements on the sales of securities to the general public (the "Securities Laws") may affect the disposition of any securities Securities and that Secured Party's concern that its sale or disposition of any such securities Securities be in compliance with the Securities Laws may very strictly limit Secured Party's course of conduct in disposing or attempting to dispose of all or any part of such securitiesSecurities, and may also limit the extent to which or the manner in which any subsequent transferee may dispose of the same. Consequently, Debtor agrees that Secured Party may, in selling or disposing of any such securities, Securities proceed in such manner and under such circumstances as it may deem necessary or advisable to assure compliance with all the Securities Laws. Without limiting the generality of the foregoing, the Secured Party may, subject to compliance with applicable law, in its sole and absolute discretion: (i) sell privately any such securities Securities notwithstanding that such securities Securities may be qualified or registered for sale to the general public; (ii) approach and negotiate with a restricted number of potential purchasers to effect such sale; and (iii) restrict such sale to purchasers as to their number, nature of business and investment intention (including, without limitation, to purchasers each of whom will represent and agree to the satisfaction of Secured Party that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such securities Securities or part thereof), it being understood that Secured Party may require Debtor, and Debtor hereby agrees upon the written request of Secured Party to cause: (a) a legend or legends to be placed on the certificates or Instruments to be delivered to such purchasers to the effect that the securities Securities represented thereby have not been registered under the Securities Laws and setting forth or referring to restrictions on the transferability of such securitiesSecurities; (b) the issuance of stock transfer instructions to the issuer's transfer agent, if any, with respect to such securitiesSecurities, or, if the issuer transfers its own securities, a notation in the appropriate records of such issuer; and (c) to be delivered to the purchasers a signed acknowledgment of the issuer of such securities Securities that, as concerns such securitiesSecurities, such purchasers shall be entitled to the rights of Debtor by virtue of their purchase of such securities Securities from Secured Party. In the event of any such sale, Debtor does hereby consent and agree that Secured Party shall incur no responsibility or liability for selling all or any part of the Securities pledged and assigned hereunder at a price which Secured Party, in its sole and absolute discretion, may deem reasonable under the circumstances, notwithstanding the possibility that a higher price might be realized if the sale were public, or the fact that the price obtained for such Securities is less than the public market price for such Securities at the time of sale, or Secured Party accepts the first offer received, does not approach more than one possible purchaser in connection with a private sale, or limits those who may bid at a public auction.
E. (e) Debtor agrees, if requested by Secured Party, at Debtor's sole expense to take (to, and to cause any Issuer(sissuer(s) of securities Securities pledged and assigned hereunder to take) to, take such actions, render such assistance and prepare, distribute and/or file such documents as Secured Party or its legal counsel may reasonably request in connection with the private or public sale of such securitiesSecurities. Debtor agrees to indemnify and hold harmless Secured Party and any underwriter against all loss, liability, expenses or claims (including the reasonable cost of any investigation) which any of them may incur in connection with the sale of such securities Securities to the extent that such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact by Debtor contained in any registration statement, prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact by Debtor required to be stated therein or necessary to make the statements therein not misleading, except to the extent due to the gross negligence or willful misconduct of Secured Party or any such underwriter. At Debtor's sole expense, Debtor shall qualify, file or register, or cause to be qualified, filed or registered, such Securities under the Blue Sky laws or other Securities Laws of such jurisdictions as Secured Party may request, and keep all such qualifications, filings and registrations effective for as long as Secured Party shall reasonably request. Debtor will keep Secured Party advised in writing as to the progress of each such registration, qualification or filing, and will furnish, or cause to be furnished to Secured Party, at Debtor's expense, such number of prospectuses, offering circulars and registration statements as Secured Party may from time to time request.
F. (f) Secured Party may, to the fullest extent permitted by applicable law, bid for and purchase the Collateral in a commercially reasonable manner, and upon compliance with the terms of sale may hold, retain and possess and dispose of the same in its own absolute rightright without further accountability. Secured Party may credit all or any part of the Obligations against the purchase price(s) so bid, and may deliver any notes or instruments evidencing any of the Obligations in payment of such purchase price(s); if the amounts then owing under any such notes or instruments exceed such purchase price(s), then the same shall be returned to Secured Party after due notation of the partial discharge thereof.
G. (g) Upon consummation of any sale, Secured Party shall have the right to assign, transfer, endorse, convey and deliver to the respective purchaser(s) the Collateral or portion thereof so sold.
H. A sale . Secured Party is hereby irrevocably appointed Debtor's true and lawful attorney-in-fact (which appointment is coupled with an interest) in Debtor's name and stead, with power of substitution, to make all necessary bills of sale, endorsements and instruments of assignment and transfer of the Collateral thus sold, and for such other purposes as Secured Party may deem necessary or desirable to effectuate the provisions of this Agreement or any other Loan Document. If so requested by Secured Party or by any other person, Debtor shall ratify and confirm the acts of Secured Party (and/or any substitute) as Debtor's attorney-in-fact.
(h) Such sale shall divest all right, title, interest, equity, redemption, claim and demand whatsoever of Debtor, including Debtors right Debtor in and to claim a percentage or royalty from the profits or proceeds derived from the Collateral sold and shall be a perpetual bar both at law and in equity against Debtor and Debtor's successors and assigns, and against any and all persons claiming or who may claim all or any part of the Collateral from, through or under any of them.
I. (i) A receipt given by Secured Party (or its designated agent) shall be a sufficient discharge to the purchaser(s) at such sale for his or their purchase money, and none of them shall, after such payment and receipt, be obliged to see to the application of such purchase money or be answerable for any loss, misapplication or non-application thereof.
(j) To the extent that Debtor may lawfully do so, Debtor agrees not at any time nor in any manner to insist upon, plead, claim or take the benefit or advantage of any appraisement, valuation, stay, extension or redemption laws, or any law permitting Debtor to direct the order in which all or any part of the Collateral shall be sold, which may delay, prevent or otherwise affect the performance or enforcement of this Agreement; Debtor hereby expressly waives to the fullest extent permitted by lawlaw all benefit or advantage of any such laws now or at any time hereafter in force and hereby covenants not to hinder, Debtor hereby waives delay or impede the execution of any claims against power granted or delegated to Secured Party arising with respect to any decrease in this Agreement, but will suffer and permit the market value execution of any Collateral during the period held for sale, or arising by reason of the possibility that the price at which the Collateral may have been sold was less that the price that might have been obtained had the sale been otherwise effectedevery such power as though no such laws were in force.
J. (k) Secured Party shall have no obligation whatsoever to resort first to any other security which Secured Party may hold for the Obligations. Secured Party shall not incur any liability to Debtor as a result of the sale of any Collateral at any private sale conducted in a commercially reasonable manner, or as a result of any failure to sell or offer for sale any Collateral for any reason whatsoever or to exercise any other right, privilege, option or power to the fullest extent permitted by law granted to Secured Party hereunder. Debtor hereby waives to the fullest extent permitted by law any claims against Secured Party arising with respect to any decrease in the market value of any Collateral during the period held for sale, or arising by reason of the fact that the price at which the Collateral may have been sold was less than the price that might have been obtained had the sale been otherwise effected, even if Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree.
K. (l) A written agreement to sell any Collateral, which agreement Secured Party in good faitx xxxxx xxxxx itself xxxelf bound to perform, shall be treated as a sale of such Collateral and Secured Party shall be free to carry out such agreement. If such an agreement is then effective, Debtor shall not be entitled to the return of any Collateral subject thereto, even if after the date of such agreement all Events of Default shall have been cured or the Obligations shall have been fully paid and performed.
L. (m) After deducting all costs and expenses of every kind for taking, retaking, care, safekeeping, collecting, holding, preparing for sale, selling, delivering and the like (including legal costs, insurance, commission for sale, and reasonable attorney's fees) and all other charges against the Collateral, Secured Party shall apply the residue of the proceeds of any such sale or other disposition against any and all amounts remaining unpaid under the Obligations, all in such order of priority as Secured Party may determine in its sole discretion. Debtor shall remain liable for any deficiency remaining after such application, and reasonable discretionany surplus shall be returned to Debtor.
Appears in 1 contract
