Remedies Application of Proceeds. Upon the occurrence and during the continuance of an Event of Default: a. The Collateral Agent may, and at the instruction of the Required Purchasers shall, exercise in respect of the Collateral, in addition to all other rights and remedies granted to it under this Agreement, the Amendment Agreement, the other Transaction Documents or otherwise available to it, all rights and remedies of a secured party under the UCC or other Applicable Law. Without limiting the generality of the foregoing, the Company expressly agrees that, in any such event, the Collateral Agent without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other Applicable Law), may take immediate possession of all or any portion of the Collateral and, (i) require the Company to, and the Company hereby agrees that it will at its own expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at one or more locations where the Company regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s offices or elsewhere, for cash, on credit, and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least 10 days’ notice to the Company of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. b. The Collateral Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, the Company’s labels, Patents, Copyrights, rights of use of any name, trade secrets, trade names, Trademarks, service marks and advertising matter, URLs, domain names, industrial designs, other industrial or Intellectual Property or any property of a similar nature, whether owned by the Company or with respect to which the Company has rights under license, sublicense, or other agreement, as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any collateral, and the Company’s rights under all licenses and all franchise agreements shall inure to the benefit of the Collateral Agent. c. The Collateral Agent may, in addition to other rights and remedies provided for herein, in the Amendment Agreement or the other Transaction Documents, or otherwise available to it under Applicable Law and without the requirement of notice to or upon the Company or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the UCC or any other Applicable Law), (i) with respect to any of the Company’s Deposit Accounts in which the Collateral Agent’s Liens are perfected by control under Section 9-104 of the UCC, instruct the bank maintaining such Deposit Account for the Company to pay the balance of such deposit Account to or for the benefit of the Collateral Agent, and (ii) with respect to any of the Company’s Securities Accounts in which the Collateral Agent’s Liens are perfected by control under Section 9-106 of the UCC, instruct the securities intermediary maintaining such Securities Account for the Company to (A) transfer any cash in such Securities Account to or for the benefit of the Collateral Agent, or (B) liquidate any financial assets in such Securities Account that customarily sold on a recognized market and transfer the cash proceeds thereof to or for the benefit of the Collateral Agent.
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Remedies Application of Proceeds. (a) Upon the occurrence and during the continuation of an Event of Default and at any time thereafter during the continuation of such Event of Default Lender shall, by notice to Borrower, take any or all of the following actions, at the same or different times:
(i) terminate forthwith the Commitment;
(ii) declare the Term Loan then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Term Loan so declared to be due and payable, together with accrued interest thereon and any unpaid accrued fees and all other liabilities of Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding;
(iii) exercise the rights and remedies under the Security Documents;
(iv) without any obligation to do so, make disbursements of the Term Loan to or on behalf of Borrower to cure any Event of Default hereunder and to cure any default and render any performance under any Project Contracts (provided that access to the Project is pursuant to the Site Agreement) as Lender, in its sole discretion, may consider necessary or appropriate, whether to preserve and protect the Collateral or Lender’s interests therein or for any other reason, and all sums so expended, together with interest on such total amount at the rate provided in the second sentence of Section 2.6, shall be repaid by Borrower to Lender on demand and shall be secured by the Loan Documents;
(v) exercise all other rights and remedies available to a secured creditor under the UCC and other applicable Governmental Rules; provided, that, notwithstanding anything contained herein or in any other Loan Document to the contrary, in the case of (A) any event with respect to Borrower described in paragraph (g) or (h) of Section 7.1 or (B) any event described in paragraph (k) of Section 7.1, the Commitment shall automatically terminate, the principal of the Term Loan then outstanding, together with accrued interest thereon and any unpaid accrued fees and all other liabilities of Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by Borrower;
(vi) without any obligation to do so, to take any and all action and to render any performance or cause any performance to be rendered under any Project Contracts and to otherwise continue the operations of the Project as Lender in its sole discretion may consider necessary or appropriate, in which case Borrower shall provide unfettered access to the Project to permit Lender from taking such action as Lender in its sole discretion may consider necessary or appropriate to continue the operations of the Project.
(b) Upon the occurrence and during the continuance of an Event of Default, all “proceeds” (as defined in the UCC) (net of the costs and expenses reasonably incurred in connection with the realization of the Collateral and any taxes, assessments or permitted prior Liens with respect to the Collateral) received by Lender under this Agreement shall be applied in the following order:
a. The Collateral Agent may(i) First, to reimburse Lender for all fees, expenses and at indemnities and other amounts payable to Lender in accordance with this Agreement and the instruction other Loan Documents;
(ii) Second, to the payment of that portion of the Required Purchasers shallObligations constituting fees and usual and customary expenses owed to Lender;
(iii) Third, exercise to the payment of accrued interest on the Term Loan due and owing Lender;
(iv) Fourth, to the payment of principal in respect of the CollateralTerm Loan;
(v) Fifth, in addition to all other rights and remedies granted to it under this Agreement, the Amendment Agreement, the other Transaction Documents or otherwise available to it, all rights and remedies of a secured party under the UCC or other Applicable Law. Without limiting the generality of the foregoing, the Company expressly agrees that, in any such event, the Collateral Agent without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Company or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC payment of all remaining outstanding Obligations (including indemnities and other Applicable Lawamounts), may take immediate possession of all or any portion of the Collateral to be applied by Lender; and,
(ivi) require the Company to, and the Company hereby agrees that it will at its own expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at one or more locations where the Company regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s offices or elsewhere, for cash, on credit, and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees thatSixth, to the extent notice of sale shall be required by law, at least 10 days’ notice to the Company of the time and place of that any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable “authenticated notification of dispositionproceeds” within the meaning of Section 9-611 of (as defined in the UCC. The Collateral Agent shall not be obligated to make any sale ) remain after the full payment in cash of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
b. The Collateral Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, the Company’s labels, Patents, Copyrights, rights of use of any name, trade secrets, trade names, Trademarks, service marks and advertising matter, URLs, domain names, industrial designs, other industrial or Intellectual Property or any property of a similar nature, whether owned by the Company or with respect to which the Company has rights under license, sublicense, or other agreement, as it pertains to the Collateral, amounts set forth in preparing for sale, advertising for sale and selling any collateral, and the Company’s rights under all licenses and all franchise agreements shall inure to the benefit of the Collateral Agent.
c. The Collateral Agent may, in addition to other rights and remedies provided for herein, in the Amendment Agreement or the other Transaction Documents, or otherwise available to it under Applicable Law and without the requirement of notice to or upon the Company or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the UCC or any other Applicable Law), clauses (i) with respect through (v) above, to any of the Company’s Deposit Accounts in which the Collateral Agent’s Liens are perfected Borrower or as required by control under Section 9-104 of the UCC, instruct the bank maintaining such Deposit Account for the Company to pay the balance of such deposit Account to or for the benefit of the Collateral Agent, and (ii) with respect to any of the Company’s Securities Accounts in which the Collateral Agent’s Liens are perfected by control under Section 9-106 of the UCC, instruct the securities intermediary maintaining such Securities Account for the Company to (A) transfer any cash in such Securities Account to or for the benefit of the Collateral Agent, or (B) liquidate any financial assets in such Securities Account that customarily sold on a recognized market and transfer the cash proceeds thereof to or for the benefit of the Collateral Agentapplicable Governmental Rules.
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Remedies Application of Proceeds. Upon 12.1 The Bank may, upon the occurrence and during the continuance of an Event of Default, exercise any one or more of the following rights and remedies:
a. The Collateral Agent may12.1.1 If the Commitment or any portion thereof has not yet been advanced, and at declare the instruction obligations of the Required Purchasers shallBank to honor the Commitment immediately terminated, exercise in respect whereupon the obligation of the CollateralBank to make Advances and issue any Letters of Credit shall terminate immediately;
12.1.2 Declare the Note and all Obligations to be forthwith due and payable, in addition to whereupon all other rights such Obligations shall be accelerated and remedies granted to it under this Agreementshall become immediately due and payable without presentation, the Amendment Agreement, the other Transaction Documents or otherwise available to it, all rights and remedies of a secured party under the UCC or other Applicable Law. Without limiting the generality of the foregoing, the Company expressly agrees that, in any such event, the Collateral Agent without demand of performance or other demand, advertisement or notice of any kind to the Borrowers (all of which are hereby waived by the Borrowers), except that if an Event of Default specified in Section 11.7 or 11.8 shall occur with respect to any or all Borrowers, such acceleration shall be automatic and no declaration or other act of any of the notice specified below Bank shall be necessary to effect such acceleration;
12.1.3 Proceed to protect and enforce the rights of time the Bank to payment of the Obligations and place its rights to proceed against the Collateral and exercise its remedies whether by suit in equity or by action at law, or both, whether for the specific performance of public any covenant, agreement or private sale) to or upon other provision of any of the Company Loan Documents or any other Person legal or equitable right or remedy of the Bank;
12.1.4 At any time or from time to time, without notice to the Borrowers (all and each of which demands, advertisements and notices are any such notice being hereby expressly waived to the maximum extent permitted waived), set off and appropriate and apply any and all monies, securities, instruments and deposits (general or special, including, but not limited to, any indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the UCC and other Applicable Law), may take immediate possession Bank to or for the credit or the account of all or any portion of the Collateral andBorrowers against and/or on account of the Obligations, irrespective of whether or not (i) require the Company toBank shall have made any demand hereunder, or (ii) the Bank shall have declared the Obligations to be due and the Company hereby agrees that it will at its own expense payable and upon request although any of the Collateral Agent forthwithObligations may be contingent or unmatured. The Borrowers hereby grant to the Bank a security interest in and lien upon all such monies, assemble all securities, instruments and deposits. No security interest, lien or right of setoff shall be deemed to have been waived by any act or conduct on the part of the Collateral as directed Bank, or by any neglect to exercise such right of setoff or to enforce such a lien, or by any delay in so doing, and every right of setoff shall continue in full force and effect until such right of setoff is specifically waived or released by an instrument in writing executed by the Collateral Agent and make it available Bank;
12.1.5 In addition to those actions that may otherwise be permitted to be taken by the Collateral Agent at one or more locations where the Company regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at Bank under any of the Collateral Agent’s offices or elsewhereLoan Documents, for cash, on credit, and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least 10 days’ notice to the Company of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
b. The Collateral Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, the Company’s labels, Patents, Copyrights, rights of use of any name, trade secrets, trade names, Trademarks, service marks and advertising matter, URLs, domain names, industrial designs, other industrial or Intellectual Property or any property of a similar nature, whether owned by the Company or with respect to which the Company has rights under license, sublicense, or other agreement, as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any collateral, and take the Company’s rights under all licenses and all franchise agreements shall inure to the benefit of the Collateral Agent.
c. The Collateral Agent may, in addition to other rights and remedies provided for herein, in the Amendment Agreement or the other Transaction Documents, or otherwise available to it under Applicable Law and without the requirement of notice to or upon the Company or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the UCC or any other Applicable Law), (i) with respect to any of the Company’s Deposit Accounts in which the Collateral Agent’s Liens are perfected by control under Section 9-104 of the UCC, instruct the bank maintaining such Deposit Account for the Company to pay the balance of such deposit Account to or for the benefit of the Collateral Agent, and (ii) with respect to any of the Company’s Securities Accounts in which the Collateral Agent’s Liens are perfected by control under Section 9-106 of the UCC, instruct the securities intermediary maintaining such Securities Account for the Company to (A) transfer any cash in such Securities Account to or for the benefit of the Collateral Agent, or (B) liquidate any financial assets in such Securities Account that customarily sold on a recognized market and transfer the cash proceeds thereof to or for the benefit of the Collateral Agent.following actions:
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Sources: Revolving Credit Loan and Security Agreement (Unapix Entertainment Inc)