Specific Remedies. (A) Without limiting clause (i) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows: (B) On and following the Termination Date, the Administrative Agent shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool Receivables), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller and any other party obligated under the Transaction Documents, or any of such Pool Receivables at the sole discretion of the Administrative Agent; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator and Servicer that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables or any part thereof (including any purchase by the Administrative Agent or any Affiliate) in accordance with the terms of this Section 2.2(b)(ii) for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to the Secured Parties under the Transaction Documents, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent and the Administrative Agent shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Termination Date pursuant to Section 2.2(a), the Administrative Agent shall have the right, in accordance with this Section 2.2(b)(ii) to dispose of the Pool Receivables or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool Receivables, and the Administrative Agent may, at its option and in its complete discretion: (i) dispose of the Pool Receivables or any part thereof at a public disposition; (ii) dispose of the Pool Receivables or any part thereof at a private disposition, in which event such notice shall also contain the terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables or to procure a Person willing, ready and able to acquire the Pool Receivables on terms at least as favorable to the Seller, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables to the acquirer so procured;
Appears in 2 contracts
Samples: Omnibus Amendment (Ingram Micro Inc), Receivables Purchase Agreement (Ingram Micro Inc)
Specific Remedies. (A1) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bi) On and following After the occurrence of the Purchase Termination Date, Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law Law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesCollateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, Master Servicer and any Originator and any other party obligated under the Transaction DocumentsObligations, or any of such Pool Receivables Collateral, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Master Servicer, any Originator and Servicer any other party obligated under the Obligations that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Collateral or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Collateral or any part thereof upon giving at least ten three (103) days’ prior notice to the Seller and the Master Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Master Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesCollateral and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Collateral or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Collateral or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Collateral or to procure a Person willing, ready and able to acquire the Pool Receivables Collateral on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Collateral to the acquirer so procured;
(III) dispose of the Collateral or any part thereof in bulk or parcels;
(IV) dispose of the Collateral or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by applicable Law, free from any redemption right, the Collateral or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Collateral or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at Law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Collateral for which notice has been given as provided above and may retain the Collateral until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and Master Servicer each acknowledges and agrees that private dispositions may be made at prices and upon other terms less favorable than might have been attained if the Collateral were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Law, Administrative Agent shall not be obligated to make any disposition of the Collateral or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and Master Servicer to the extent permitted by Law, shall be required in connection with any disposition of the Collateral or any part thereof, except for the notice described in this clause (ii). In case of any disposition by Administrative Agent of any of the Collateral on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Collateral so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Collateral so disposed. In case of any such failure, such Collateral so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Collateral at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with any Purchase Termination Date, neither Seller nor Master Servicer shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Collateral or any other security for the Obligations, nor shall Seller or Master Servicer be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations (other than any Indemnified Amounts that have not then been requested under this Agreement) have been paid to Administrative Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Collateral for disposition.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Specific Remedies. (AUpon the occurrence of any Event of Default, Lessor may, with or without notice to Lessee, exercise any one or more of the following remedies, as Lessor in its sole discretion shall elect:
i. To proceed by appropriate court action(s) Without limiting clause (i) above or any other provision herein either at law or in equity to enforce Lessee's performance under this Lease or to recover damages for the breach thereof;
ii. By notice in writing to Lessee terminate the case, whereupon all rights of Lessee to the use of the Units shall absolutely cease and terminate, but Lessee shall remain liable as herein provided;
iii. To require Lessee, at Lessee's expense, to return any other Transaction Document, or all of the parties hereto agree that the terms of this Section 2.2(b)(ii) are agreed upon Units in accordance with Section 9-603 the return provisions of this Lease, or Lessor or its agent, at its option may in a reasonable manner enter upon the premises of Lessee or other premises where any of the New York UCC, that they do not believe the terms of this Section 2.2 to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(B) On and following the Termination Date, the Administrative Agent shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool Receivables), and such rights and remedies: (A) shall be cumulative and concurrent; (B) Units may be pursued separately, successively or concurrently against the Seller and any other party obligated under the Transaction Documents, take possession of all or any of such Pool Receivables Units and thenceforth hold, possess and enjoy the same free from any right of Lessee or any third party deriving any right to the Units through Lessee and their respective successors or assigns;
iv. To declare immediately due and payable all Rents and other amounts due and to become due under this Lease and such accounts shall be discounted to present value at the sole discretion lesser of five percent (5%) per annum or the rate for three month Treasury Bills as of the Administrative Agent; (C) may be exercised as often as occasion therefor shall arisedate of such declaration;
v. To sell by public or private sale, it being agreed by each release, hold, retain, or otherwise dispose of the SellerUnits in any manner Lessor chooses, Originator free and Servicer that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or clear of any other rightclaims or rights of Lessee; provided, remedy or recoursethat, Lessor shall not be obligated to realize on any Unit; and provided, further, in the event of such realization, Lessor shall apply the net proceeds of any such realization (D) are intended to be and shall be, non-exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables or any part thereof (including any purchase by the Administrative Agent or any Affiliate) in accordance with the terms of this Section 2.2(b)(ii) for consideration which is insufficient, after payment of deducting all related reasonable costs and expenses of every kind, to pay kind incurred in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed connection therewith) to the Secured Parties payment in whole or in part of the Lessee's obligations under this Lease Agreement and each Rider, in such order and manner as Lessor may elect, with Lessee remaining liable for any deficiency and after the Transaction Documentsforegoing application of net proceeds, (1) any remaining balance shall be paid by Lessor to Lessee;
vi. If any Unit is not returned, recover the Settlement Value of such disposition shall not act asUnit;
vii. Exercise any other right or remedy then available to Lessor at law or in equity. If Lessee fails to perform any of its obligations hereunder, Lessor, at Lessee’s expense, and shall not be deemed to be, a waiver of without waiving any rights by the Administrative Agent and the Administrative Agent shall it may have a claim against Lessee for such deficiency and (2) non-performance, may itself render such performance. If applicable, Lessor shall be entitled to the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence remedies of a lessor under Section 1168 of the Termination Date pursuant to Section 2.2(a), the Administrative Agent shall have the right, in accordance with this Section 2.2(b)(ii) to dispose of the Pool Receivables or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool Receivables, and the Administrative Agent may, at its option and in its complete discretion:
(i) dispose of the Pool Receivables or any part thereof at a public disposition;
(ii) dispose of the Pool Receivables or any part thereof at a private disposition, in which event such notice shall also contain the terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables or to procure a Person willing, ready and able to acquire the Pool Receivables on terms at least as favorable to the Seller, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables to the acquirer so procured;U.S. Bankruptcy Code.
Appears in 1 contract
Samples: Locomotive Lease Agreement
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(e) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(e) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:: 77 Mylan
(Bii) On and following After the occurrence of the Purchase Termination Date, the Administrative Agent and Secured Parties shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law Law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesCollateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, Servicer, Originator and any other party obligated under the Transaction DocumentsObligations, or any of such Pool Receivables Collateral, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of Secured Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Servicer, Originator and Servicer any other party obligated under the Obligations that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-exclusivenon‑exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Collateral or any part thereof (including any purchase by the Administrative Agent Agent, any Secured Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by Agent or Secured Parties and Agent on behalf of the Administrative Agent and the Administrative Agent Secured Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(b) or Section 10.2(c), Agent, on behalf of the Administrative Agent Secured Parties, shall have the right, in accordance with this Section 2.2(b)(ii) 10.2(e), to dispose of the Pool Receivables Collateral or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Servicer, Originator and Servicer each party obligated under the Obligations hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesCollateral and any other security for the Obligations, and Agent, acting with the Administrative Agent mayconsent of the Required Purchaser Agents may or, at its option and in its complete discretiontheir direction, shall for the benefit of the Secured Parties:
(iI) dispose of the Pool Receivables Collateral or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Collateral or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Collateral or to procure a Person willing, ready and able to acquire the Pool Receivables Collateral on terms at least as favorable to Seller and the SellerSecured Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Collateral to the acquirer so procured;
(III) dispose of the Collateral or any part thereof in bulk or parcels;
(IV) dispose of the Collateral or any part thereof to any Secured Party or any Affiliate thereof at a public disposition;
(V) at a public disposition, bid for and acquire, unless prohibited by applicable Law, free from any redemption right, the Collateral or any part thereof, and, if Secured Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Agent on behalf of Secured Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Agent on behalf of Secured Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Agent for the benefit of Secured Parties, upon so acquiring the Collateral or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by applicable Law; or
(VI) enforce any other remedy available to Agent on behalf of Secured Parties at Law or in equity. From time to time Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Collateral for which notice has been given as provided above and may retain the Collateral until such time as the proposed disposition occurs if, in the sole discretion of Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. For the avoidance of doubt, to the extent permitted by Law, Agent shall not be obligated to make any disposition of the Collateral or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by the Seller, Servicer, Originator and each party obligated under the Obligations to the extent permitted by Law, shall be required in connection with any disposition of the Collateral or any part thereof, except for the notice described in this clause (ii). In case of any disposition by Agent of any of the Collateral on credit, which may be elected at the option and in the complete discretion of Agent, on behalf of Secured Parties, the Collateral so disposed may be retained by Agent for the benefit of Secured Parties until the disposition price is paid by the purchaser, but neither Agent nor Secured Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Collateral so disposed. In case of any such failure, such Collateral so disposed may be again disposed. After deducting all reasonable out-of-pocket and documented costs or expenses of every kind (including the reasonable attorneys’ fees and legal expenses incurred by Agent 79 Mylan or Secured Parties, or both), Agent shall apply the net proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Agent nor Secured Parties shall incur any liability as a result of the dispositions of the Collateral at any private or public disposition that complies with the provisions of this Section 10.2(e). Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Agent on behalf of Secured Parties in connection with any Purchase Termination Date, none of Seller, Servicer, Originator or Performance Guarantor shall be subrogated thereby to any rights of Agent for the benefit of Secured Parties against the Collateral or any other security for the Obligations, nor shall Seller, Servicer, Originator or Performance Guarantor be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations have been paid to Agent for the benefit of the Secured Parties and are fully and indefeasibly performed and discharged. Agent shall have no duty to prepare or process the Collateral for disposition.
Appears in 1 contract
Specific Remedies. (Aa) Without limiting If an Event of Default occurs and is continuing, then, subject to subsection (d) of this Section, the Trustee shall, upon the Request of the Controlling Persons, and may, but only with the prior written consent of the Controlling Persons, and having been indemnified to its satisfaction (except with respect to the exercise of the remedy specified in clause (i) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
subsection (B) On and following the Termination Date, the Administrative Agent shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool Receivables), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller and any other party obligated under the Transaction Documents, or any of such Pool Receivables at the sole discretion of the Administrative Agent; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator and Servicer that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables or any part thereof (including any purchase by the Administrative Agent or any Affiliate) in accordance with the terms of this Section 2.2(b)(iia) for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to the Secured Parties under the Transaction Documents, (1) such disposition shall not act as, and Trustee shall not be deemed entitled to be, require indemnification as a waiver precondition to the exercise of such remedy) take any rights by the Administrative Agent and the Administrative Agent shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for all or any such deficiency. Upon the declaration or automatic occurrence combination of the Termination Date pursuant to Section 2.2(a), the Administrative Agent shall have the right, in accordance with this Section 2.2(b)(ii) to dispose of the Pool Receivables or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool Receivables, and the Administrative Agent may, at its option and in its complete discretionfollowing actions:
(i) dispose unless such Event of Default is an Event of Default under Section 9.02(c) or (l) that does not have a Material Adverse Effect on the Pool Receivables Hotel or any part thereof at a public dispositionthereof, declare the principal of the Bonds to be immediately due and payable, whereupon that portion of the principal of the Bonds thereby coming due and the interest thereon accrued to the date of payment shall, without further action, become and be immediately due and payable, anything in this Trust Agreement or in the Bonds to the contrary notwithstanding;
(ii) dispose by mandamus or other suit, action or proceeding at law or in equity require the Commission to perform its covenants, representations and duties with respect to the Bonds under this Trust Agreement;
(iii) by action or suit in equity require the Commission to account as if it were the trustee of an express trust for the Owners of the Pool Receivables Bonds;
(iv) by action or suit in equity enjoin any part thereof at a private disposition, acts or things that may be unlawful or in which event such notice shall also contain the terms violation of the proposed dispositionrights of the Owners of the Bonds;
(v) prohibit the Commission from withdrawing moneys from any Funds or Accounts (except the Rebate Fund, the Taxes and Insurance Fund, the Working Capital Reserve Fund and the FF&E Reserve Fund) without the Controlling Persons’ written consent;
(vi) request that a court of competent jurisdiction appoint, to the extent permitted by law, a receiver or receivers of the Revenues and other assets pledged under this Trust Agreement, and the Seller income, revenues, profits and use thereof, it being the intent hereof that, to the extent permitted by law, the Trustee shall have until the time be entitled to appointment of such proposed disposition during which a receiver as a matter of right;
(vii) upon the occurrence of an Event of Default described in Section 9.02(a) or (b), transfer moneys from any Funds or Accounts (other than amounts necessary to redeem pay Operating Expenses and amounts on deposit in the Pool Receivables or to procure a Person willing, ready Taxes and able to acquire Insurance Fund and the Pool Receivables on terms at least as favorable Rebate Fund) to the Seller, and if such an acquirer is so procured, then the Administrative Agent shall dispose Debt Service Account of the Pool Receivables Debt Service Fund;
(viii) enter into such agreements or other arrangements as the Controlling Persons determine, in their discretion, to be necessary or appropriate either to retain the Manager under the existing Management Agreement or make modifications to the acquirer so procured;Management Agreement; provided, that there shall first be delivered an opinion of Bond Counsel to the effect that such agreements, arrangements or modifications will not, in and of themselves,
Appears in 1 contract
Samples: Trust Agreement
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination DateDate pursuant to Section 10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesSeller Assets), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, any Originator and Performance Guarantor and any other party obligated under the Transaction Documents, or any of such Pool Receivables Seller Assets, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator Servicer, each Originator, Performance Guarantor and Servicer any 755931971 16509877 other party obligated under the Transaction Documents, or any of such Seller Assets, or any other security for the Obligations, or any of them, that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Seller Assets or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. .
(iii) Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall (at the direction of the Required Purchasers) have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Seller Assets or any part thereof upon giving at least ten (10) daysBusiness Days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesSeller Assets and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Seller Assets or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Seller Assets or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Seller Assets or to procure a Person willing, ready and able to acquire the Pool Receivables Seller Assets on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Seller Assets to the acquirer so procured;
(III) dispose of the Seller Assets or any part thereof in bulk or parcels;
(IV) dispose of the Seller Assets or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by Applicable Law, free from any redemption right, the Seller Assets or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Seller Assets or any part thereof shall be entitled to hold or 755931971 16509877 otherwise deal with or dispose of the same in any manner not prohibited by Applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Seller Assets for which notice has been given as provided above and may retain the Seller Assets until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and CHS each acknowledges and agrees that private dispositions may be made at prices and upon other terms less favorable than might have been attained if the Seller Assets were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Applicable Law, Administrative Agent shall not be obligated to make any disposition of the Seller Assets or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and CHS to the extent permitted by Applicable Law, shall be required in connection with any disposition of the Seller Assets or any part thereof, except for the notice described in this clause (iii). In case of any disposition by Administrative Agent of any of the Seller Assets on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Seller Assets so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Seller Assets so disposed. In case of any such failure, such Seller Assets so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Seller Assets at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Seller Assets or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with the Purchase Termination Date pursuant to Section 10.2, neither Seller nor CHS shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Seller Assets or any other security for the Obligations, nor shall Seller or CHS be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations have been paid to Administrative 755931971 16509877 Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Seller Assets for disposition.
Appears in 1 contract
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination Date, Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law Law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesCollateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, Master Servicer and any Originator and any other party obligated under the Transaction DocumentsObligations, or any of such Pool Receivables Collateral, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Master Servicer, any Originator and Servicer any other party obligated under the Obligations that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Collateral or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Collateral or any part thereof upon giving at least ten three (103) days’ prior notice to the Seller and the Master Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Master Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesCollateral and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Collateral or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Collateral or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Collateral or to procure a Person willing, ready and able to acquire the Pool Receivables Collateral on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Collateral to the acquirer so procured;
(III) dispose of the Collateral or any part thereof in bulk or parcels;
(IV) dispose of the Collateral or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by applicable Law, free from any redemption right, the Collateral or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Collateral or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at Law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Collateral for which notice has been given as provided above and may retain the Collateral until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and Master Servicer each acknowledges and agrees that private dispositions may be made at prices and upon other terms less favorable than might have been attained if the Collateral were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Law, Administrative Agent shall not be obligated to make any disposition of the Collateral or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and Master Servicer to the extent permitted by Law, shall be required in connection with any disposition of the Collateral or any part thereof, except for the notice described in this clause (ii). In case of any disposition by Administrative Agent of any of the Collateral on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Collateral so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Collateral so disposed. In case of any such failure, such Collateral so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Collateral at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with any Purchase Termination Date, neither Seller nor Master Servicer shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Collateral or any other security for the Obligations, nor shall Seller or Master Servicer be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations (other than any Indemnified Amounts that have not then been requested under this Agreement) have been paid to Administrative Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Collateral for disposition.
Appears in 1 contract
Samples: Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination DateDate pursuant to Section 10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesSeller Assets), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, any Originator and Performance Guarantor and any other party obligated under the Transaction Documents, or any of such Pool Receivables Seller Assets, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator Servicer, each Originator, Performance Guarantor and Servicer any 749037980 other party obligated under the Transaction Documents, or any of such Seller Assets, or any other security for the Obligations, or any of them, that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Seller Assets or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Termination Date pursuant to Section 2.2(a), the Administrative Agent shall have the right, in accordance with this Section 2.2(b)(ii) to dispose of the Pool Receivables or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool Receivables, and the Administrative Agent may, at its option and in its complete discretion:
(i) dispose of the Pool Receivables or any part thereof at a public disposition;
(ii) dispose of the Pool Receivables or any part thereof at a private disposition, in which event such notice shall also contain the terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables or to procure a Person willing, ready and able to acquire the Pool Receivables on terms at least as favorable to the Seller, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables to the acquirer so procured;.
Appears in 1 contract
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination DateDate pursuant to Section 10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesSeller Assets), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, any Originator and Performance Guarantor and any other party obligated under the Transaction Documents, or any of such Pool Receivables Seller Assets, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator Servicer, each Originator, Performance Guarantor and Servicer any other party obligated under the Transaction Documents, or any of such Seller Assets, or any other security for the Obligations, or any of them, that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Seller Assets or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. 753697831
(iii) Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall (at the direction of the Required Purchasers) have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Seller Assets or any part thereof upon giving at least ten (10) daysBusiness Days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesSeller Assets and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Seller Assets or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Seller Assets or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Seller Assets or to procure a Person willing, ready and able to acquire the Pool Receivables Seller Assets on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Seller Assets to the acquirer so procured;
(III) dispose of the Seller Assets or any part thereof in bulk or parcels;
(IV) dispose of the Seller Assets or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by Applicable Law, free from any redemption right, the Seller Assets or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Seller Assets or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by Applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Seller Assets for which notice has been given as provided above and may retain the Seller Assets until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and CHS each acknowledges and agrees that private dispositions may be made at prices and 753697831 upon other terms less favorable than might have been attained if the Seller Assets were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Applicable Law, Administrative Agent shall not be obligated to make any disposition of the Seller Assets or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and CHS to the extent permitted by Applicable Law, shall be required in connection with any disposition of the Seller Assets or any part thereof, except for the notice described in this clause (iii). In case of any disposition by Administrative Agent of any of the Seller Assets on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Seller Assets so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Seller Assets so disposed. In case of any such failure, such Seller Assets so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Seller Assets at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Seller Assets or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with the Purchase Termination Date pursuant to Section 10.2, neither Seller nor CHS shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Seller Assets or any other security for the Obligations, nor shall Seller or CHS be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations have been paid to Administrative Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Seller Assets for disposition.
Appears in 1 contract
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bi) On and following After the occurrence of the Purchase Termination Date, Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law Law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesCollateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, Master Servicer and any Originator and any other party obligated under the Transaction DocumentsObligations, or any of such Pool Receivables Collateral, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Master Servicer, any Originator and Servicer any other party obligated under the Obligations that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Collateral or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Collateral or any part thereof upon giving at least ten three (103) days’ prior notice to the Seller and the Master Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Master Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesCollateral and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Collateral or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Collateral or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Collateral or to procure a Person willing, ready and able to acquire the Pool Receivables Collateral on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Collateral to the acquirer so procured;
(III) dispose of the Collateral or any part thereof in bulk or parcels;
(IV) dispose of the Collateral or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by applicable Law, free from any redemption right, the Collateral or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Collateral or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at Law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Collateral for which notice has been given as provided above and may retain the Collateral until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and Master Servicer each acknowledges and agrees that private dispositions may be made at prices and upon other terms less favorable than might have been attained if the Collateral were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Law, Administrative Agent shall not be obligated to make any disposition of the Collateral or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and Master Servicer to the extent permitted by Law, shall be required in connection with any disposition of the Collateral or any part thereof, except for the notice described in this clause (ii). In case of any disposition by Administrative Agent of any of the Collateral on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Collateral so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Collateral so disposed. In case of any such failure, such Collateral so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Collateral at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with any Purchase Termination Date, neither Seller nor Master Servicer shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Collateral or any other security for the Obligations, nor shall Seller or Master Servicer be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations (other than any Indemnified Amounts that have not then been requested under this Agreement) have been paid to Administrative Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Collateral for disposition.
Appears in 1 contract
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.)
Specific Remedies. (A) Without limiting clause (i) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(B) On and following the Termination Date, the Administrative Agent shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesBorrower Collateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Borrower and any other party obligated under the Transaction Documents, or any of such Pool Receivables at the sole discretion of the Administrative Agent; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator Borrower and the Servicer that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables or any part thereof (including any purchase by the Administrative Agent or any Affiliate) or any other Borrower Collateral in accordance with the terms of this Section 2.2(b)(ii) for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all the Aggregate CapitalLoan Amount, Aggregate Yield thereon, Program Fees and all other amounts Borrower Obligations owed to the Secured Lender Parties under the Transaction Documents, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent and the Administrative Agent shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Termination Date pursuant to Section 2.2(a), the Administrative Agent shall have the right, in accordance with this Section 2.2(b)(ii) to dispose of the Pool Receivables or any part thereof or any other Borrower Collateral upon giving at least ten (10) daysBusiness Days’ prior notice to the Seller Borrower and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Borrower and the Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesReceivables or any other Borrower Collateral, and the Administrative Agent may, at its option and in its complete discretion:
(i) dispose of the Pool Receivables or any part thereof or any other Borrower Collateral at a public disposition;
(ii) dispose of the Pool Receivables or any part thereof or any other Borrower Collateral at a private disposition, in which event such notice shall also contain the terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables or to procure a Person willing, ready and able to acquire the Pool Receivables on terms at least as favorable to the Seller, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables to the acquirer so procured;
Appears in 1 contract
Samples: Receivables Loan Agreement (Elanco Animal Health Inc)
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(e) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(e) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination Date, the Administrative Agent and Secured Parties shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law Law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesCollateral), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, Servicer, Originator and any other party obligated under the Transaction DocumentsObligations, or any of such Pool Receivables Collateral, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of Secured Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Servicer, Originator and Servicer any other party obligated under the Obligations that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Collateral or any part thereof (including any purchase by the Administrative Agent Agent, any Secured Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by Agent or Secured Parties and Agent on behalf of the Administrative Agent and the Administrative Agent Secured Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(b) or Section 10.2(c), Agent, on behalf of the Administrative Agent Secured Parties, shall have the right, in accordance with this Section 2.2(b)(ii) 10.2(e), to dispose of the Pool Receivables Collateral or any part thereof upon giving at least ten (10) days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Servicer, Originator and Servicer each party obligated under the Obligations hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesCollateral and any other security for the Obligations, and Agent, acting with the Administrative Agent mayconsent of the Required Purchaser Agents may or, at its option and in its complete discretiontheir direction, shall for the benefit of the Secured Parties:
(iI) dispose of the Pool Receivables Collateral or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Collateral or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Collateral or to procure a Person willing, ready and able to acquire the Pool Receivables Collateral on terms at least as favorable to Seller and the SellerSecured Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Collateral to the acquirer so procured;
(III) dispose of the Collateral or any part thereof in bulk or parcels;
(IV) dispose of the Collateral or any part thereof to any Secured Party or any Affiliate thereof at a public disposition;
(V) at a public disposition, bid for and acquire, unless prohibited by applicable Law, free from any redemption right, the Collateral or any part thereof, and, if Secured Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Agent on behalf of Secured Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Agent on behalf of Secured Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Agent for the benefit of Secured Parties, upon so acquiring the Collateral or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by applicable Law; or
(VI) enforce any other remedy available to Agent on behalf of Secured Parties at Law or in equity. From time to time Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Collateral for which notice has been given as provided above and may retain the Collateral until such time as the proposed disposition occurs if, in the sole discretion of Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. For the avoidance of doubt, to the extent permitted by Law, Agent shall not be obligated to make any disposition of the Collateral or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by the Seller, Servicer, Originator and each party obligated under the Obligations to the extent permitted by Law, shall be required in connection with any disposition of the Collateral or any part thereof, except for the notice described in this clause (ii). In case of any disposition by Agent of any of the Collateral on credit, which may be elected at the option and in the complete discretion of Agent, on behalf of Secured Parties, the Collateral so disposed may be retained by Agent for the benefit of Secured Parties until the disposition price is paid by the purchaser, but neither Agent nor Secured Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Collateral so disposed. In case of any such failure, such Collateral so disposed may be again disposed. After deducting all reasonable out-of-pocket and documented costs or expenses of every kind (including the reasonable attorneys’ fees and legal expenses incurred by Agent or Secured Parties, or both), Agent shall apply the net proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Agent nor Secured Parties shall incur any liability as a result of the dispositions of the Collateral at any private or public disposition that complies with the provisions of this Section 10.2(e). Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Agent on behalf of Secured Parties in connection with any Purchase Termination Date, none of Seller, Servicer, Originator or Performance Guarantor shall be subrogated thereby to any rights of Agent for the benefit of Secured Parties against the Collateral or any other security for the Obligations, nor shall Seller, Servicer, Originator or Performance Guarantor be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations have been paid to Agent for the benefit of the Secured Parties and are fully and indefeasibly performed and discharged. Agent shall have no duty to prepare or process the Collateral for disposition.
Appears in 1 contract
Specific Remedies. (Ai) Without limiting clause (iSection 10.2(c) above or any other provision herein or in any other Transaction Document, the parties hereto agree that the terms of this Section 2.2(b)(ii10.2(d) are agreed upon in accordance with Section 9-603 of the New York UCC, that they do not believe the terms of this Section 2.2 10.2(d) to be “manifestly unreasonable” for purposes of Section 9-603 of the New York UCC, and that they believe that compliance therewith shall constitute a “commercially reasonable” disposition under Section 9-610 of the New York UCC, and further agree as follows:
(Bii) On and following After the occurrence of the Purchase Termination DateDate pursuant to Section 10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall have all rights, remedies and recourse granted in any Transaction Document and any other instrument executed to provide security for or in connection with the payment and performance of the Transaction Documents Obligations or existing at common law or equity (including specifically those granted by the New York UCC and the UCC of any other state which governs the creation or perfection (and the effect thereof) of any security interest in the Pool ReceivablesSeller Assets), and such rights and remedies: (A) shall be cumulative and concurrent; (B) may be pursued separately, successively or concurrently against the Seller Seller, any Originator and Performance Guarantor and any other party obligated under the Transaction Documents, or any of such Pool Receivables Seller Assets, or any other security for the Obligations, or any of them, at the sole discretion of the Administrative Agent, on behalf of the Affected Parties; (C) may be exercised as often as occasion therefor shall arise, it being agreed by each of the Seller, Originator Servicer, each Originator, Performance Guarantor and Servicer any other party obligated under the Transaction Documents, or any of such Seller Assets, or any other security for the Obligations, or any of them, that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (D) are intended to be and shall be, non-non exclusive. For the avoidance of doubt, with respect to any disposition of the Pool Receivables Seller Assets or any part thereof (including any purchase by the Administrative Agent Agent, any Affected Party, or any AffiliateAffiliate of any of them) in accordance with the terms of this Section 2.2(b)(ii) 10.2 for consideration which is insufficient, after payment of all related costs and expenses of every kind, to pay in full all Aggregate Capital, Aggregate Yield thereon, Program Fees and all other amounts owed to satisfy the Secured Parties under the Transaction DocumentsObligations, (1) such disposition shall not act as, and shall not be deemed to be, a waiver of any rights by the Administrative Agent or the Affected Parties and the Administrative Agent on behalf of the Affected Parties shall have a claim for such deficiency and (2) the Administrative Agent shall not be liable or responsible for any such deficiency. .
(iii) Upon the declaration or automatic occurrence of the Purchase Termination Date pursuant to Section 2.2(a10.2(a) or Section 10.2(b), Administrative Agent, on behalf of the Administrative Agent Affected Parties, shall (at the direction of the Required Purchasers) have the right, in accordance with this Section 2.2(b)(ii) 10.2(d), to dispose of the Pool Receivables Seller Assets or any part thereof upon giving at least ten (10) daysBusiness Days’ prior notice to the Seller and the Servicer of the time and place of disposition, for cash or upon credit or for future delivery, with each of the Seller, Originator Seller and Servicer hereby waiving all rights, if any, to require the Administrative Agent or any other Person to marshal the Pool ReceivablesSeller Assets and at the option and in the complete discretion of Administrative Agent, and the Administrative Agent may, at its option and in its complete discretion:
(iI) dispose of the Pool Receivables Seller Assets or any part thereof at a public disposition;
(iiII) dispose of the Pool Receivables Seller Assets or any part thereof at a private disposition, in which event such notice shall also contain a summary of the material terms of the proposed disposition, and the Seller shall have until the time of such proposed disposition during which to redeem the Pool Receivables Seller Assets or to procure a Person willing, ready and able to acquire the Pool Receivables Seller Assets on terms at least as favorable to Seller and the SellerAffected Parties, and if such an acquirer is so procured, then the Administrative Agent shall dispose of the Pool Receivables Seller Assets to the acquirer so procured;
(III) dispose of the Seller Assets or any part thereof in bulk or parcels;
(IV) dispose of the Seller Assets or any part thereof to any Affected Party or any Affiliate thereof at a public disposition;
(V) bid for and acquire, unless prohibited by Applicable Law, free from any redemption right, the Seller Assets or any part thereof, and, if the Affected Parties are then the holders of any Obligations or any participation or other interest therein, in lieu of paying cash therefor, Administrative Agent on behalf of the Affected Parties may make settlement for the selling price by crediting the net selling price, if any, after deducting all costs and expenses of every kind, upon the outstanding principal amount of the Obligations, in such order and manner as Administrative Agent on behalf of the Affected Parties, in its discretion, may deem advisable and as permissible and required under the Transaction Documents. Administrative Agent for the benefit of Affected Parties, upon so acquiring the Seller Assets or any part thereof shall be entitled to hold or otherwise deal with or dispose of the same in any manner not prohibited by Applicable Law; or
(VI) enforce any other remedy available to Administrative Agent on behalf of the Affected Parties at law or in equity. From time to time Administrative Agent may, but shall not be obligated to, postpone the time and change the place of any proposed disposition of any of the Seller Assets for which notice has been given as provided above and may retain the Seller Assets until such time as the proposed disposition occurs if, in the sole discretion of Administrative Agent, such postponement or change is necessary or appropriate in order that the provisions of this Agreement applicable to such disposition may be fulfilled or in order to obtain more favorable conditions under which such disposition may take place. Seller and CHS each acknowledges and agrees that private dispositions may be made at prices and upon other terms less favorable than might have been attained if the Seller Assets were disposed of at public disposition. For the avoidance of doubt, to the extent permitted by Applicable Law, Administrative Agent shall not be obligated to make any disposition of the Seller Assets or any part thereof notwithstanding any prior notice of a proposed disposition. No demand, advertisement or notice, all of which are hereby expressly waived by Seller and CHS to the extent permitted by Applicable Law, shall be required in connection with any disposition of the Seller Assets or any part thereof, except for the notice described in this clause (iii). In case of any disposition by Administrative Agent of any of the Seller Assets on credit, which may be elected at the option and in the complete discretion of Administrative Agent, on behalf of the Affected Parties, the Seller Assets so disposed may be retained by Administrative Agent for the benefit of the Affected Parties until the disposition price is paid by the purchaser, but neither Administrative Agent nor the Affected Parties shall incur any liability in case of failure of the purchaser to take up and pay for the Seller Assets so disposed. In case of any such failure, such Seller Assets so disposed may be again disposed. After deducting all costs or expenses of every kind (including the attorneys’ fees and legal expenses incurred by Administrative Agent or the Affected Parties, or both), Administrative Agent shall apply the residue of the proceeds of any disposition or dispositions, if any, to pay the principal of and interest upon the Obligations in such order and manner as Administrative Agent in its discretion may deem advisable and as permissible and required under the Transaction Documents. The excess, if any, shall be paid to Seller in accordance with the Transaction Documents. Neither Administrative Agent nor the Affected Parties shall incur any liability as a result of the dispositions of the Seller Assets at any private or public disposition that complies with the provisions of this Section 10.2(d). Notwithstanding a foreclosure upon any of the Seller Assets or exercise of any other remedy by Administrative Agent on behalf of the Affected Parties in connection with the Purchase Termination Date pursuant to Section 10.2, neither Seller nor CHS shall be subrogated thereby to any rights of Administrative Agent for the benefit of the Affected Parties against the Seller Assets or any other security for the Obligations, nor shall Seller or CHS be deemed to be the owner of any interest in any Obligations, or exercise any rights or remedies with respect to itself or any other party until the Obligations have been paid to Administrative Agent for the benefit of the Affected Parties and are fully and indefeasibly performed and discharged. Administrative Agent shall have no duty to prepare or process the Seller Assets for disposition.
Appears in 1 contract
Samples: Omnibus Amendment (CHS Inc)
