Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party may, in its discretion: (a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request; (b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral; (c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby; (d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto; (e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine; (f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto; (g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services; (h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and (i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 5 contracts
Sources: Secured Promissory Note and Security Agreement (Charlie's Holdings, Inc.), Secured Promissory Note and Security Agreement (Charlie's Holdings, Inc.), Secured Promissory Note and Security Agreement (Charlie's Holdings, Inc.)
Remedies Upon an Event of Default. On and after the occurrence and continuance of (a) If an Event of DefaultDefault has occurred and is continuing, the Secured Party may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of may exercise all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, Secured Party may, without being required to give any applicable jurisdiction) and all other applicable notice, except as herein provided or as may be required by mandatory provisions of law, includingsell the Collateral or any part thereof at public or private sale, without limitationfor cash, upon credit or for future delivery, at such price or prices as Secured Party may deem satisfactory. Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale or private sale. Debtor will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable so that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to take possession of, hold, collect, sell, lease, deliver, grant options assign and transfer to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of purchaser thereof the Collateral so sold. Each purchaser at any such sale shall be applied by hold the Secured Party first Collateral so sold to the payment it absolutely and free from any claim or right of all expenses (includingDebtor of whatsoever kind, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, including any equity or liquidating the Collateralright of redemption of Debtor. The balance of such proceeds, if any, shallDebtor, to the extent permitted by law, be applied hereby specifically waives all rights of redemption, stay or appraisal which it has or may have under any law now existing or hereafter adopted. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the payment Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Provided that if the Obligations in the order and manner designated by default has been remedied before the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of has taken any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption action with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not rights under this Agreement will be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view restored to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 2 contracts
Sources: Option to Purchase (Karlton Terry Oil Co), Option to Purchase Agreement (Karlton Terry Oil Co)
Remedies Upon an Event of Default. On and after Upon the occurrence of, and during the continuance of an of, any Event of DefaultDefault hereunder, the Secured Party mayLender shall be entitled, at its option and without notice, in its discretion, to:
(a) request that 9.1 declare the DebtorNote immediately due and payable and add expenses, and upon such request fees (including, but not limited to reasonable attorneys’ fees) to unpaid principal and interest whereupon the Debtor shallunpaid principal and interest under the Note, assemble the Collateral at such place together with fees thereon and other liabilities and obligations of Borrower accrued hereunder, shall become immediately due and payable, without presentment, demand, protest, notice of dishonor, or places convenient to the Secured Party designated in such requestany other notice of any kind, all of which are expressly waived by Borrower, anything contained herein notwithstanding;
(b) 9.2 enforce collection of any of the Collateral by suit or any other lawful means available to the Secured PartyLender, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) 9.3 surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) 9.4 assert all other rights and remedies of a secured party Lender under the UCC and any similar statute or regulation (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds Proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party Lender first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' ’ fees and legal expenses) incurred by the Secured Party Lender in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceedsProceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the such order and manner designated of application as determined by the Secured Party Lender in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by extent such order of application is not inconsistent with applicable law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor Borrower at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 2 contracts
Sources: Loan and Security Agreement (Applied Solar, Inc.), Loan and Security Agreement (Map Vi Acquisition, Inc.)
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party Holder may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party Holder first to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' ’ fees and legal expenses) incurred by the Secured Party Holder in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by the Secured Party of application set forth in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all Section 28(f) of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by lawthis Agreement. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof fourteen (1014) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party Holder may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured PartyHolder) as the Secured Party Holder in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, disposition without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party Holder may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party Holder shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party Holder shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party Holder arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party Holder accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party Holder may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party Holder than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party Holder shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 2 contracts
Sources: Security Agreement (HealthLynked Corp), Security Agreement (HealthLynked Corp)
Remedies Upon an Event of Default. On and after Upon the occurrence and continuance of an Event of DefaultDefault hereunder and the acceleration of the Notes pursuant to Section 10.1, the Secured Party Noteholders may, at their option, either on their own behalf or through the Collateral Agent, and in its discretionaddition to all other rights and remedies available to the Noteholders, without further notice to the Company, do any one or more of the following:
(a) request that proceed to protect and enforce the Debtorrights, privileges and upon remedies granted to it by this Agreement, the Notes, the Environmental Indemnity Agreement and the Security Documents by such request judicial proceedings as the Debtor shallNoteholders shall deem necessary or appropriate, assemble either at law, in equity, in bankruptcy or otherwise, whether for specific enforcement of any covenant or agreement contained in the Collateral at such place Notes, this Agreement, the Environmental Indemnity Agreement and the Security Documents or places convenient to in aid of the Secured Party designated in such requestexercise of any right, power, privilege or remedy therein or herein granted;
(b) Foreclose or otherwise enforce collection the Collateral Agent’s security interest in any manner permitted by law, or provided for in this Agreement, and exercise at any time all rights and remedies of a secured party under the Uniform Commercial Code in effect in the states where the respective Property is located, or for any foreclosure of the Collateral by suit Property provided under the Security Documents and sale under any judgment or decree in any judicial proceeding, or to enforce any other lawful means legal or equitable right or remedy granted or otherwise available to the Secured PartyNoteholders hereunder or under the other Debt Documents;
(c) Enter onto property where any Personal Property is located and take peaceful possession thereof with or without judicial action;
(d) Prior to the disposition of the Property, store, process, repair or demandrecondition it or otherwise prepare it for disposition in any manner and to the extent the Noteholders deem appropriate and in connection with such preparation and disposition, collectwithout charge, use any copyright, patent, technical process, permit, approval, license, consent or governmental approval used or held by the Company;
(e) Demand, sue for, collect or receive any money or property at any time payable to or receivable by the Company on account of or in exchange for any part of the CollateralProperty;
(cf) surrender, release, or exchange or otherwise modify Secure the terms appointment of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced therebya receiver in accordance with applicable law;
(dg) assert all Sell, lease, or otherwise dispose of any Property in accordance with the applicable Security Document; and
(h) Take any other rights action and remedies of seek any other remedy available to a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Sources: Note Purchase Agreement (Unified Western Grocers Inc)
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request that any of the DebtorGuarantors, and upon such request the Debtor such Guarantor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in (i) first, to payment of that portion of the order Obligations constituting fees, expenses and manner designated by indemnities owed to Secured Party, (ii) second, to payment of that portion of the Obligations constituting interest owed to Secured Party in its sole discretion until all Party, (iii) third, to payment of that portion of the Obligations are indefeasibly paid in full in cash. After constituting unpaid principal of the Monto Note, (iv) fourth, to pay any other Obligations owed to Secured Party, and (v) finally, the balance, if any, after all of the Obligations have been indefeasibly paid in full in cashfull, the balance of such proceeds, if any, shall be remitted to the Debtor Guarantors or as otherwise required by law. In case of any deficiency, the Debtor Guarantors shall, whether or not then due, remain jointly and severally liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to each of the Debtor Guarantors at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor Each of the Guarantors hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor Each of the Guarantors hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor Each of the Guarantors recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor Each of the Guarantors acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of any of the Debtor Guarantors in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and each of the Debtor Guarantors releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from Secured Party's gross negligence or willful misconduct;
(g) make a request upon any of the Debtor Guarantors (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor such Guarantor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor such Guarantor or any such action related thereto. In connection with any such disposition, the Debtor but subject to any confidentiality provisions imposed on such Guarantor in any license or similar agreement, such Guarantor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (each of the Debtor Guarantors hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtorsuch Guarantor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral▇▇▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Guarantor Security Agreement (Peoples Liberation Inc)
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in (i) first, to payment of that portion of the order Obligations constituting fees, expenses and manner designated by indemnities owed to Secured Party, (ii) second, to payment of that portion of the Obligations constituting interest owed to Secured Party in its sole discretion until all Party, (iii) third, to payment of that portion of the Obligations are indefeasibly paid in full in cash. After constituting unpaid principal of the Mobility Note, (iv) fourth, to pay any other Obligations owed to Secured Party, and (v) finally, the balance, if any, after all of the Obligations have been indefeasibly paid in full in cashfull, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from Secured Party's gross negligence or willful misconduct;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the but subject to any confidentiality provisions imposed on Debtor in any license or similar agreement, Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Sources: Borrower Security Agreement (Peoples Liberation Inc)
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in (i) first, to payment of that portion of the order Obligations constituting fees, expenses and manner designated by indemnities owed to Secured Party, (ii) second, to payment of that portion of the Obligations constituting interest owed to Secured Party in its sole discretion until all Party, (iii) third, to payment of that portion of the Obligations are indefeasibly paid in full in cash. After constituting unpaid principal of the Monto Note, (iv) fourth, to pay any other Obligations owed to Secured Party, and (v) finally, the balance, if any, after all of the Obligations have been indefeasibly paid in full in cashfull, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from Secured Party's gross negligence or willful misconduct;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the but subject to any confidentiality provisions imposed on Debtor in any license or similar agreement, Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Sources: Borrower Security Agreement (Peoples Liberation Inc)
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party Collateral Agent may, in its discretion:
(a) request that any of the DebtorGrantors, and upon such request the Debtor such Grantor shall, assemble the Collateral at such place or places convenient to the Secured Party Collateral Agent designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured PartyCollateral Agent, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party Collateral Agent first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party Collateral Agent in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by set forth in Section 30 of this Agreement or, if no payment Obligation is then outstanding, the Secured Party Collateral Agent may, in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cashdiscretion, hold the balance of such proceeds, if any, shall be remitted proceeds for future application to payment Obligations as and when the Debtor or as otherwise required by lawsame become due. In case of any deficiency, the Debtor Grantors shall, whether or not then due, remain jointly and severally liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to each of the Debtor Grantors at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party Collateral Agent may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured PartyCollateral Agent or any Purchaser) as the Secured Party Collateral Agent in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor Each of the Grantors hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party Collateral Agent and the Purchasers may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party Neither the Collateral Agent nor the Purchasers shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing and neither the Collateral Agent nor the Purchasers shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party Neither the Collateral Agent nor the Purchasers shall incur no any liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor Each of the Grantors hereby waives any claims against the Secured Party Collateral Agent and the Purchasers arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor Each of the Grantors recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor Each of the Grantors acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party Collateral Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that neither the Secured Party Collateral Agent nor the Purchasers shall have no any obligation to engage in public sales and no or any obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party Collateral Agent shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of any of the Debtor Grantors in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and each of the Debtor Grantors releases the Secured Party Collateral Agent and the Purchasers from liability for, and agrees to hold the Secured Party Collateral Agent and the Purchasers free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Collateral Agent's or any Purchaser's own gross negligence or own willful misconduct;
(g) make a request upon any of the Debtor Grantors (which shall not be construed as implying any limitation on the rights or powers of the Secured PartyCollateral Agent), and upon such request the Debtor such Grantor shall, execute and deliver to the Secured Party Collateral Agent a power of attorney, in form and substance satisfactory to the Secured PartyCollateral Agent, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor such Grantor or any such action related thereto. In connection with any such disposition, the Debtor but subject to any confidentiality provisions imposed on such Grantor in any license or similar agreement, such Grantor will supply to the Secured Party Collateral Agent its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured PartyCollateral Agent's names name or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (each of the Debtor Grantors hereby irrevocably constituting and appointing the Secured Party Collateral Agent the proxy and attorney-in-fact of the Debtorsuch Grantor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Remedies Upon an Event of Default. On and after Upon the occurrence of, and during the continuance of an of, any Event of DefaultDefault hereunder, the Secured Party mayLender shall be entitled, at its option and without notice, in its discretion, to:
(a) request that 9.1 declare the DebtorNote immediately due and payable and add expenses, and upon such request fees (including, but not limited to reasonable attorneys’ fees) to principal whereupon the Debtor shallprincipal of the Note, assemble the Collateral at such place together with fees thereon and other liabilities and obligations of Borrower accrued hereunder, shall become immediately due and payable, without presentment, demand, protest, notice of dishonor, or places convenient to the Secured Party designated in such requestany other notice of any kind, all of which are expressly waived by Borrower, anything contained herein notwithstanding;
(b) 9.2 declare null and void any obligation of Lender in the Loan Documents to make Subsequent Advances and declare this Note immediately due and payable.
9.3 enforce collection of any of the Collateral by suit or any other lawful means available to the Secured PartyLender, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) 9.4 surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) 9.5 assert all other rights and remedies of a secured party Lender under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds Proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party Lender first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' ’ fees and legal expenses) incurred by the Secured Party Lender in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceedsProceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the such order and manner designated of application as determined by the Secured Party Lender in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by extent such order of application is not inconsistent with applicable law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor Borrower at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.reasonable
Appears in 1 contract
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, all Obligations shall become immediately due and payable, upon written notice by the Secured Party to the Debtor. In such event, the Secured Party may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places reasonably convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the such order and manner designated of application as determined by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by extent such order of application is not inconsistent with applicable law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note signature page hereof ten (10) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law, provided that such sale or other disposition is conducted in a commercially reasonably manner. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. ; The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor hereby waives any claims against the Secured Party to the extent permitted by applicable law arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. ; The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole reasonable discretion determine; provided that such licenses or sublicenses do not conflict with any existing license of which the Secured Party shall have received a copy;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole and reasonable discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Secured Party's gross negligence or willful misconduct;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance reasonably satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the but subject to any confidentiality provisions imposed on such Debtor in any license or similar agreement, such Debtor will supply to the Secured Party its know-how and expertise relating to the tot he relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their its nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party Collateral Agent may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party Collateral Agent first to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' ’ fees and legal expenses) incurred by the Secured Party Collateral Agent in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by the Secured Party of application set forth in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all Section 27 of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by lawthis Agreement. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof fourteen (1014) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party Collateral Agent may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Collateral Agent or any Secured PartyNote Holder) as the Secured Party Collateral Agent in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, disposition without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Collateral Agent and the Secured Party Note Holders may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party Collateral Agent shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party Collateral Agent shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party Collateral Agent arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party Collateral Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Remedies Upon an Event of Default. On and after the occurrence and --------------------------------- continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places reasonably convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, release or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, purchase or otherwise retain, liquidate, liquidate or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, liquidation or other disposition of the Collateral shall be applied by the Secured Party first pursuant to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment Section 506 of the Obligations in the order and manner designated by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable thereforIndenture. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) days Business Days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute reasonable discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. ; The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. ; The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole reasonable discretion determine; provided that such licenses or sublicenses do not conflict with any existing license of which the Secured Party shall have received a copy;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole and reasonable discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Secured Party's gross negligence or willful misconduct;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance reasonably satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the but subject to any confidentiality provisions imposed on such Debtor in any license or similar agreement, such Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their its nominee or nominees; and
(i) give all consents, waivers, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Sources: Pledge and General Security Agreement (Globix Corp)
Remedies Upon an Event of Default. On and after (a) Upon the occurrence and continuance of an Event of Default, the Secured Party may, Pledgee shall have in its discretion:
(a) request that the Debtor, and upon such request the Debtor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any each case all of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable lawPennsylvania Uniform Commercial Code, includingand, without limitationlimiting the foregoing, shall have the right to take possession ofright, holdwithout demand of performance or other demand, collect, sell, lease, deliver, grant options to purchaseadvertisement, or otherwise retain, liquidate, notice of any kind (except the notice specified below of time and place of public or dispose of all private sale or other disposition) to or upon the Pledgor or any portion other person (all of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shallwhich are, to the extent permitted by law, be applied hereby expressly waived), to forthwith realize upon the payment of the Obligations in the order and manner designated by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral Pledged Securities or any portion thereof is necessary under applicable lawpart thereof, written notice mailed to and may forthwith, or agree to, sell or otherwise dispose of and deliver the Debtor at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral Pledged Securities or any portion part thereof shall have been made or interest therein, in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase one or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, more parcels at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereofsales, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold exchange, broker's board or elsewhere, at such prices and on such terms (including, without limitation, a private sale was less than the price requirement that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale purchaser of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire Pledged Securities purchase the relevant Collateral for their own account, shares constituting the Pledged Securities for investment and not with without any intention to make a view to the distribution or resale thereof. The Debtor acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so ) as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to timePledgee shall, in its sole discretion, enforce determine (the Pledgor hereby waiving and shall have releasing any and all right or equity of redemption whether before or after sale hereunder) for or on credit, or for future delivery without assumption of any credit risk, with the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor Pledgee or any such action related thereto. In connection with purchaser to purchase upon any such disposition, sale or acquire pursuant to (i) above the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all whole or any part of the Collateral into Pledged Securities free of any right or equity of redemption in Pledgor, which right or equity is hereby expressly waived and released. Pledgee agrees to give at least ten (10) days written notice of the Secured Party's names time and place of any public sale or of the name time after which a private sale or other disposition may take place, which notice Pledgor hereby deems commercially reasonable.
(b) The proceeds of their nominee any disposition of the Pledged Securities or nominees; andother action by Pledgee shall be applied as follows:
(i) give all consentsFirst, waivers, the costs and ratifications expenses incurred in respect connection therewith or incidental thereto or to the care or safekeeping of any of the Collateral Pledged Securities or in any way relating to the rights of Pledgee hereunder, including reasonable attorneys' fees and otherwise act with respect thereto as though it were legal expenses;
(ii) Second, to the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact satisfaction of the DebtorObligations;
(iii) Third, with full power to the payment of substitution to do so, which power is coupled with an interest), any other amounts required by applicable law (including, without limitation, Section 9-504(a)(3) of the exercise Uniform Commercial Code as enacted in the Commonwealth of all votingPennsylvania (the "UCC"); and
(iv) Fourth, consensual and other powers of ownership pertaining to Pledgor, to the Collateralextent of any surplus proceeds, absent the agreement of the parties to the contrary or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Collateral Pledge Agreement (Cti Group Holdings Inc)
Remedies Upon an Event of Default. On and after the occurrence and continuance of (a) In case an Event of DefaultDefault shall have occurred and be continuing which results in the acceleration of the Indebtedness, the Secured Party mayCollateral Agent shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this Pledge Agreement or by the Loan Agreement or by law) for the protection and enforcement of its discretionrights in respect of the Collateral, including, without limitation, all the rights and remedies of a secured party upon default under the Uniform Commercial Code of the State of New York, and the Collateral Agent shall be entitled, without limitation, to exercise the following rights, which the Pledgor hereby agrees to be commercially reasonable:
(ai) request that the Debtor, and upon such request the Debtor shall, assemble to receive all amounts payable in respect of the Collateral at such place or places convenient otherwise payable to the Secured Party designated in such requestPledgor;
(bii) enforce collection of to transfer all or any part of the Collateral by suit into the Collateral Agent's name or the name of its nominee or nominees;
(iii) to vote all or any other lawful means available part of the Stock, Partnership Interests, Limited Liability Company Interests and Other Equity Interests (whether or not transferred into the name of the Collateral Agent) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Pledgor hereby irrevocably constituting and appointing the Collateral Agent the proxy and attorney-in-fact of the Pledgor, with full power of substitution to do so);
(iv) to the Secured Partyfullest extent permitted by law, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrenderfrom time to time to sell, releaseassign and deliver, or exchange or otherwise modify the terms of grant options to purchase, all or any part of the Collateral, or compromise or extend or renew for any period interest therein, at any indebtedness thereunder or evidenced thereby;
public (d) assert all other rights and remedies of including pursuant to a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first registration statement pursuant to the payment of all expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expensesSecurities Act) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in the order and manner designated by the Secured Party in its sole discretion until all Obligations are indefeasibly paid in full in cash. After all of the Obligations have been indefeasibly paid in full in cash, the balance of such proceeds, if any, shall be remitted to the Debtor or as otherwise required by law. In case of any deficiency, the Debtor shall, whether or not then due, remain liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Debtor at its notice address specified in the Red B▇▇▇▇ Note ten (10) days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other dispositionsale, without demand of performance, and advertisement or notice of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise dispose of or realize on (all of which are hereby waived by the Pledgor), for cash, on credit or for other property, for immediate or future delivery without any obligation to advertise assumption of credit risk, and for such price or give notice prices and on such terms as the Collateral Agent in its absolute discretion may determine. Each purchaser at any such sale shall hold the property so sold absolutely free from any claim or right on the part of any kind other than that necessary under applicable law. The Debtor the Pledgor, and the Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling marshaling the Collateral and any other security for the Obligations or otherwise, and all rights, if any, of stay and/or appraisal which it now has or may any time in the future have under rule of law or statute now existing or hereafter enacted. At any such sale or other dispositionsale, unless prohibited by applicable law, the Secured Party Collateral Agent on behalf of the Lenders may bid for and purchase (by bidding in Obligations or otherwise) all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party Neither the Collateral Agent nor any Lender shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it any of them be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this Agreement. The Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, ; and
(v) with respect to any sale of all or any part in accordance with clause (iv) above of the Wyoming Collateral, the Collateral Agent may approach and negotiate with a single possible purchaser to limit purchasers effect such sale and/or require that any such sale (including one held by auction) be subject to those who will agreerestrictions as to (A) the financial sophistication and ability of any person permitted to bid or purchase at such sale, among other things(B) the content of legends to be placed upon any certificates representing the Wyoming Collateral sold in such sale, including restrictions on future transfer thereof, (C) the representations to acquire be made by each person bidding or purchasing at such sale relating to that person's access to financial information about the relevant Pledgor, Wyoming, the Lenders or the Collateral Agent, and such person's intentions as to the holding of the Wyoming Collateral so sold for their investment, for its own account, for investment and not with a view to the distribution thereof, and (D) such other matters as the Collateral Agent may deem necessary or resale thereof. The Debtor acknowledges advisable in order that such sale, notwithstanding any such private sale failure so to register the Wyoming Collateral under the Securities Act, may be at prices effected in compliance with the Uniform Commercial Code as in effect in any relevant jurisdiction and on terms less favorable to other laws affecting the Secured Party than those obtainable through a public sale without such restrictionsenforcement of creditors' rights, andthe Securities Act and all applicable state securities laws.
(b) Each right, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner power and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration remedy of the Collateral Agent provided for in this Pledge Agreement or related transaction so the Loan Documents or now or hereafter existing at law or in equity or by statute shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by the Collateral Agent of any one or more of the rights, powers or remedies provided for in this Pledge Agreement or the Loan Agreement or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the Collateral Agent or any Lender of all such other rights, powers or remedies, and no failure or delay on the part of the Collateral Agent or any Lender to exercise any such right, power or remedy shall operate as a waiver thereof.
(c) All moneys collected by the Collateral Agent upon any sale or other disposition of the Collateral, together with all other moneys received by the Collateral Agent hereunder, shall be applied in accordance with Section 1.8 ----------- of the Loan Agreement.
(d) It is understood and agreed that the Pledgor shall remain liable to permit a public offer the extent of any deficiency between (1) the amount of the proceeds of the Collateral applied pursuant to be made with respect thereto;Section 1.8 of the Loan Agreement and (2) the ----------- outstanding amount of the Obligations.
(e) license or sublicenseUpon any sale of the Collateral by the Collateral Agent hereunder (whether by virtue of the power of sale herein granted, whether general, special pursuant to judicial process or otherwise), the receipt of the Collateral Agent or the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold, and whether on an exclusive such purchaser or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Debtor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and the Debtor releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(g) make a request upon the Debtor (which purchasers shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor shall, execute and deliver obligated to see to the Secured Party a power application of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor or any such action related thereto. In connection with any such disposition, the Debtor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of purchase money paid over to the Collateral and otherwise act with respect thereto as though it were Agent or such officer or be answerable in any way for the outright owner thereof (the Debtor hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateralmisapplication or nonapplication thereof.
Appears in 1 contract
Remedies Upon an Event of Default. On and after the occurrence and continuance of an Event of Default, the Secured Party may, in its discretion:
(a) request that any of the DebtorGuarantors, and upon such request the Debtor such Guarantor shall, assemble the Collateral at such place or places convenient to the Secured Party designated in such request;
(b) enforce collection of any of the Collateral by suit or any other lawful means available to the Secured Party, or demand, collect, or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral;
(c) surrender, release, or exchange or otherwise modify the terms of all or any part of the Collateral, or compromise or extend or renew for any period any indebtedness thereunder or evidenced thereby;
(d) assert all other rights and remedies of a secured party under the UCC (whether or not in effect in any applicable jurisdiction) and all other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by the Secured Party first to the payment of all expenses (including, without limitation, all fees, taxes, reasonable attorneys' fees and legal expenses) incurred by the Secured Party in connection with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if any, shall, to the extent permitted by law, be applied to the payment of the Obligations in (i) first, to payment of that portion of the order Obligations constituting fees, expenses and manner designated by indemnities owed to Secured Party, (ii) second, to payment of that portion of the Obligations constituting interest owed to Secured Party in its sole discretion until all Party, (iii) third, to payment of that portion of the Obligations are indefeasibly paid in full in cash. After constituting unpaid principal of the Mobility Note, (iv) fourth, to pay any other Obligations owed to Secured Party, and (v) finally, the balance, if any, after all of the Obligations have been indefeasibly paid in full in cashfull, the balance of such proceeds, if any, shall be remitted to the Debtor Guarantors or as otherwise required by law. In case of any deficiency, the Debtor Guarantors shall, whether or not then due, remain jointly and severally liable therefor. If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to each of the Debtor Guarantors at its notice address specified in on the Red B▇▇▇▇ Note ten signature page hereof five (105) business days prior to the date of such disposition shall constitute commercially reasonable notice, but notice given in any other reasonable manner shall be sufficient. Without precluding any other methods of sale or other disposition, the sale or other disposition of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property; but in any event the Secured Party may sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose such Collateral on such terms and to such purchaser(s) (including the Secured Party) as the Secured Party in its absolute discretion may choose, and for cash or for credit or for future delivery, without assuming any credit risk, at public or private sale or other disposition, without demand of performance, and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. The Debtor Each of the Guarantors hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale or other disposition hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale or other disposition, unless prohibited by applicable law, the Secured Party may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. The Secured Party shall not be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall it be under any obligation to take any action whatsoever with regard thereto. The Secured Party shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to this AgreementAgreement conducted in a commercially reasonable manner. The Debtor Each of the Guarantors hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree. The Debtor Each of the Guarantors recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the relevant Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Debtor Each of the Guarantors acknowledges that any such private sale may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to enable the registration of the Collateral or related transaction so as to permit a public offer to be made with respect thereto;
(e) license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Secured Party shall in its sole discretion determine;
(f) without assuming any obligation or liability thereunder, at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of any of the Debtor Guarantors in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and each of the Debtor Guarantors releases the Secured Party from liability for, and agrees to hold the Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from Secured Party's gross negligence or willful misconduct;
(g) make a request upon any of the Debtor Guarantors (which shall not be construed as implying any limitation on the rights or powers of the Secured Party), and upon such request the Debtor such Guarantor shall, execute and deliver to the Secured Party a power of attorney, in form and substance satisfactory to the Secured Party, for the implementation of any sale, lease, license or other disposition of Intellectual Property owned by the Debtor such Guarantor or any such action related thereto. In connection with any such disposition, the Debtor but subject to any confidentiality provisions imposed on such Guarantor in any license or similar agreement, such Guarantor will supply to the Secured Party its know-how and expertise relating to the relevant Intellectual Property, and its customer lists and other records relating to such Intellectual Property and to the distribution of said products or services;
(h) to the extent not already so transferred, transfer all or any part of the Collateral into the Secured Party's names name or the name of their nominee or nominees; and
(i) give all consents, waivers, and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (each of the Debtor Guarantors hereby irrevocably constituting and appointing the Secured Party the proxy and attorney-in-fact of the Debtorsuch Guarantor, with full power of substitution to do so, which power is coupled with an interest), including, without limitation, the exercise of all voting, consensual and other powers of ownership pertaining to the Collateral.
Appears in 1 contract
Sources: Guarantor Security Agreement (Peoples Liberation Inc)