Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. (b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto. (c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. (d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7. (e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 6 contracts
Sources: Security Agreement (ONE Group Hospitality, Inc.), Security Agreement (ONE Group Hospitality, Inc.), Security Agreement (ONE Group Hospitality, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations, including the Guarantees, under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality Law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent promptly, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under Law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to such exercise; and (iv) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawLaw) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute Law now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law Law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 6 contracts
Sources: Security Agreement, Credit Agreement (Summit Materials, LLC), u.s. Security Agreement (Gates Global Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice (except any notice required by law) or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, subject to Section 5.02 of this Agreement, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 6 contracts
Sources: First Lien Guarantee and Collateral Agreement (STR Holdings, Inc.), First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings (New) LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in of or all such Article 9 Collateral (other than Trademarks for which such assignment, transfer or conveyance would jeopardize the validity of such Trademark, for which the parties shall cooperate to find an alternative solution) by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine as directed in accordance with the Indenture (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (determine as directed in its sole and absolute discretion) determineaccordance with the Indenture. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 6 contracts
Sources: Collateral Agreement (American Media Inc), Collateral Agreement (American Media Inc), Collateral Agreement (Ami Celebrity Publications, LLC)
Remedies Upon Default. If any Event of Default shall have occurred and be continuing:
(a) Upon the occurrence and during the continuance of an Event of DefaultThe Lender, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to without any other rights and remediesnotice to or demand upon the Borrower, the may assert all rights and remedies of a secured party under the NYUCC UCC (whether or not the UCC is applicable to Borrower or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by lawaffected Collateral) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunderequity, 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 Bank following an Event of Default Collateral. If notice prior to take immediate possession disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed to Borrower at the notice address as provided in Section 15 hereof at least ten (10) days prior to the date of such disposition shall constitute reasonable notice, but notice given in any other reasonable manner shall be sufficient. So long as the sale of the Collateral is made in a commercially reasonable manner, the Lender may sell such Collateral on such terms and to such purchaser(s) as the Lender in its absolute discretion may choose, without assuming any credit risk and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. Without precluding any other methods of sale, the sale 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. The Lender may sell the Collateral without giving any warranties as to the Collateral. The Lender may specifically disclaim or modify any warranties of title or the like. The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. At any sale of the Collateral, if permitted by applicable law, the Lender may be the purchaser, licensee, assignee or recipient of the Collateral or any part thereof and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold, assigned or licensed at such sale, to use and apply any of the Obligations as a credit on account of the purchase price of the Collateral or any part thereof payable at such sale. To the extent permitted by applicable law, Borrower waives all claims, damages and demands it may acquire against the Lender arising out of the exercise its by it of any rights hereunder. Borrower hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect thereto.
(c) Any such public to the Collateral, whether before or after sale shall be held at such time or times within ordinary business hours hereunder, and at such place or places as the Bank may fix and state in the notice (all rights, if any) , of such salemarshalling the Collateral and any other security for the Obligations or otherwise. At any such sale, unless prohibited by applicable law, the Collateral, Lender or portion thereof, to be sold any custodian may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole bid for and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of purchase all or any part of the Collateral is made on credit so sold free from any such right or equity of redemption. Neither the Lender nor any custodian shall be liable for failure to collect or realize upon any or all of the Collateral or for future deliveryany delay in so doing, nor shall it be under any obligation to take any action whatsoever with regard thereto. The Lender shall not be obligated to clean-up or otherwise prepare the Collateral so sold may be retained for sale.
(b) Any cash held by the Bank until the sale price is paid Lender as Collateral and all cash Proceeds received by the purchaser Lender in respect of any sale of, collection from, or purchasers thereof, but the Bank shall not incur other realization upon all or any liability in case any such purchaser or purchasers shall fail to take up and pay for part of the Collateral so sold and, shall be applied in case whole or in part by the Lender to the payment of expenses incurred by the Lender in connection with the foregoing or incidental to the care or safekeeping of any such failure, such of the Collateral may be sold again upon like notice. At or in any public (or, way relating to the extent permitted Collateral or the rights of the Lender hereunder, including reasonable attorneys’ fees, and the balance of such Proceeds shall be applied or set off against all or any part of the Obligations in such order as the Lender shall elect in accordance with the Credit Agreement. Borrower shall remain liable for any deficiency if such cash and the cash Proceeds of any sale or other realization of the Collateral are insufficient to pay the Obligations and the fees and other charges of any attorneys employed by applicable law, privatethe Lender to collect such deficiency.
(c) sale made If the Lender shall determine to exercise its rights to sell all or any of the Collateral pursuant to this Section, Borrower agrees that, upon request of the Bank Lender, Borrower will, at its own expense, do or cause to be done all such acts and things as may bid for or purchase, free from any right be necessary to make such sale of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale valid and may make payment on account thereof by using any claim then due binding and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon in compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiverapplicable law.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank Lender to exercise rights and remedies under this SectionSection 11 (including in order to take possession of, each collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, license out, convey, transfer or grant options to purchase any Collateral) at such time as the Lender shall be lawfully entitled to exercise such rights and remedies, Borrower hereby grants to the Bank Lender, (i) an irrevocable, non-exclusive nonexclusive, and assignable license (exercisable without payment of royalty or other compensation to any Borrower) ), subject, in the case of trademarks, to sufficient rights to quality control and inspection in favor of Borrower to avoid the risk of invalidation of such trademarks, to use, license or sub-license practice, license, sublicense, and otherwise exploit any of the Collateral consisting of and all Intellectual Property now owned or held or hereafter acquired or held by any Borrower, and wherever the same may be located, and including in such Borrower (which license reasonable shall include access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use ) and (ii) an irrevocable license (without payment of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license rent or other transaction entered into compensation to Borrower) to use, operate and occupy all real property owned, operated, leased, subleased, or otherwise occupied by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit AgreementBorrower.
Appears in 6 contracts
Sources: Security Agreement, Security Agreement and Chattel Mortgage, Security Agreement
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, right with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower the Grantors hereby waives waive (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 5 contracts
Sources: Guarantee and Pledge Agreement, Guarantee and Pledge Agreement (Cbre Group, Inc.), Amendment and Restatement Agreement (Cbre Group, Inc.)
Remedies Upon Default. (a) Upon Subject to the occurrence and during terms of the continuance of Intercreditor Agreement, if an Event of DefaultDefault occurs and is continuing, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Notes Collateral Agent on demand, and it is agreed that the Bank Notes Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, at the same or different times, with respect to any Collateral, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or without legal process all such Collateral by the applicable Grantors to the Notes Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Notes Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent permitted by law) and with or without prior notice or demand for performancethat waivers cannot be obtained), to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Notes Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Obligations at a public or private sale or at any broker's board or on any securities exchangesale, for cash, upon credit or for future delivery as the Bank Notes Collateral Agent shall deem appropriate. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Notes Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Notes Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be madefor such sale. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Notes Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Notes Collateral Agent may (in its sole and absolute discretion) determine. The Bank Notes Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Notes Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Notes Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Notes Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Notes Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Notes Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Notes Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 3.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 5 contracts
Sources: Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Agent on demand, and it is agreed that the Bank Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAgent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Agent shall deem appropriate. The Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower the Grantors hereby waives waive (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Agent may (in its sole and absolute discretion) determine. The Bank Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 5 contracts
Sources: Loan Modification Agreement (TransDigm Group INC), Credit Agreement (TransDigm Group INC), Guarantee and Collateral Agreement (TransDigm Group INC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor's right to ▇▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless The Secured Parties shall give Grantor ten (10) days' written notice (which Grantor agrees is reasonable notice within the Collateral is perishable or threatens meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties' intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Secured Parties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Secured Parties may (in its their sole and absolute discretion) determine. The Bank Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but the Bank Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Parties from any Borrower Grantor as a credit against the purchase price, and the Bank Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Secured Parties shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Secured Parties shall have entered into such an agreement all Events of Default shall Obligations have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Secured Parties may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 5 contracts
Sources: Security Agreement (Speedcom Wireless Corp), Security Agreement (Vertel Corp), Security Agreement (Speedcom Wireless Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to deliver, on written demand, each item of Collateral to the Bank Administrative Agent or any Person designated by the Administrative Agent, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times subject to the mandatory requirements of applicable law: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent, for the benefit of the Secured Parties, or to license or sublicense, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAdministrative Agent shall determine (in each case, includingother than in violation of any then-existing rights or licensing arrangements to the extent that waivers cannot be obtained), without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Pledged Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, upon the occurrence and during the continuance of an Event of Default, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, then-existing rights and licenses and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors no less than 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At Subject to pre-existing rights and licenses, at any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed deemed, to the extent permitted by applicable law, to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Blue Buffalo Pet Products, Inc.), Collateral Agreement (Blue Buffalo Pet Products, Inc.), Collateral Agreement (Blue Buffalo Pet Products, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to deliver, on demand, each item of Collateral to the Bank Administrative Agent or any Person designated by the Administrative Agent, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent, for the benefit of the Secured Parties, or to license or sublicense, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAdministrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performanceperformance but with notice (which need not be prior notice), to take possession of the Article 9 Collateral and the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Pledged Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors no less than 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court- appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Collateral and the Secured Obligations, including the Guaranty, under the UCC or other applicable law. Without limiting the generality Law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent, each Borrower agrees promptly assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased (it being acknowledged and agreed that the Bank Grantors are not required to obtain any waiver or consent from any owner of such leased premises in connection with such occupancy or attempted occupancy) by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under Law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall have provide the rightapplicable Grantor with reasonable prior notice thereof which in any event shall be at least 10 days prior to such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with reasonable notice thereof prior to such exercise (it being understood that the notice in the next paragraph is reasonable); and (iv) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawLaw) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute Law now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors at least 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law Law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Security Agreement (Medline Inc.), Security Agreement (Medline Inc.), Security Agreement (TaskUs, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, including any applicable healthcare laws, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any . To the fullest extent permitted under applicable law, any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement (Community Health Systems Inc), Guarantee and Collateral Agreement (Community Health Systems Inc), Guarantee and Collateral Agreement (Community Health Systems Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor and each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Security Agreement Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Security Agreement Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Security Agreement Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Security Agreement Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Security Agreement Collateral may be located for the purpose of taking possession of or removing the Security Agreement Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor and each Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor or Pledgor, and each Borrower the Grantors and Pledgors hereby waives waive (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower Grantor or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors or Pledgors 10 days’ written notice (bwhich each Grantor or Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable Agent’s intention to make any sale of Security Agreement Collateral or threatens to decline speedily Pledged Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor or Pledgor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor or Pledgor as a credit against the purchase priceprice (in which case such claim shall be extinguished), and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor or Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor or Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Compass Minerals International Inc), Credit Agreement (Compass Minerals International Inc), Credit Agreement (Compass Minerals International Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor’s right to ▇▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless The Secured Parties shall give Grantor ten (10) days’ written notice (which Grantor agrees is reasonable notice within the Collateral is perishable or threatens meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties’ intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Secured Parties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Secured Parties may (in its their sole and absolute discretion) determine. The Bank Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but the Bank Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Parties from any Borrower Grantor as a credit against the purchase price, and the Bank Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Secured Parties shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Secured Parties shall have entered into such an agreement all Events of Default shall Obligations have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Secured Parties may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Security Agreement (Speedcom Wireless Corp), Security Agreement (Speedcom Wireless Corp), Security Agreement (Vertel Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default and subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor ten Business Days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement (Terex Corp), Guarantee and Collateral Agreement (Terex Corp), Guarantee and Collateral Agreement (Terex Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Administrative Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingAdministrative Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Administrative Agent and make it available to the Administrative Agent at a place and time to be designated by the Administrative Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Administrative Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Administrative Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; and (iv) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Administrative Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Administrative Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due Borrower of its intent to exercise such rights, for the purpose of (i) making, settling and payable; provided that adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any licensecheck, sub-license draft, instrument or other transaction entered into item of payment for the proceeds of such policies if insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. All sums disbursed by the Bank Administrative Agent in accordance herewith connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be binding upon the Borrowers notwithstanding any subsequent cure payable, within 10 days of an Event of Default. Any royalties and other payments received demand, by the Bank Grantors to the Administrative Agent and shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the additional Secured Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsecured hereby.
Appears in 4 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Customer Management Group, LLC), Security Agreement (West Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Administrative Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations, including the Guarantees, under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality Law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingAdministrative Agent, each Borrower agrees promptly assemble all or part of the Collateral as directed by the Administrative Agent and make it available to the Administrative Agent at a place and time to be designated by the Administrative Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under Law, without obligation to such Grantor in respect of such occupation; provided that the Bank Administrative Agent shall have provide the rightapplicable Grantor with notice thereof prior to such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Administrative Agent shall provide the applicable Grantor with notice thereof prior to such exercise; and (iv) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawLaw) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute Law now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law Law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Administrative Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Administrative Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and the Obligations having become due and payable; (provided that the Administrative Agent shall provide the applicable Grantor with notice thereof prior to, to the extent reasonably practicable, or otherwise promptly after, exercising such rights), for the purpose of (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any licensecheck, sub-license draft, instrument or other transaction entered into item of payment for the proceeds of such policies if insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. All sums disbursed by the Bank Administrative Agent in accordance herewith connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be binding upon the Borrowers notwithstanding any subsequent cure payable, within 10 days of an Event of Default. Any royalties and other payments received demand, by the Bank Grantors to the Administrative Agent and shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the additional Secured Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsecured hereby.
Appears in 4 contracts
Sources: Security Agreement (Vivint Smart Home, Inc.), Credit Agreement (APX Group Holdings, Inc.), Security Agreement (APX Group Holdings, Inc.)
Remedies Upon Default. Each Grantor agrees that (a) Upon upon the occurrence and during the continuance of an Event of DefaultDefault and upon the demand of the Administrative Agent, it will make the Borrowers shall deliver each item of Collateral available to the Bank on demandAdministrative Agent, and it is agreed that the Bank Administrative Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, to the extent permitted by applicable law, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable lawlaw and (b) upon the occurrence and during the continuance of a Specified Event of Default and at the other times provided for in the Credit Agreement, the Administrative Agent shall have the right to institute a Cash Dominion Period to the extent permitted under the Credit Agreement. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's board or on any securities exchangesale, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. Upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of the Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-612 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be madefor such sale. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or any portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may (with the consent of the Administrative Agent) make payment on account thereof by using any claim Obligation then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full, in which case any excess proceeds thereof shall be disposed of as set forth in Section 4.02 hereof. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (J C Penney Co Inc), Guarantee and Collateral Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which the Collateral is located, including, without limitation, the right, each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof upon consummation of any such sale of Collateral pursuant to this Section 5.01, the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Pledgors 10 Business Days’ written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase in cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Pledgor as a credit against the purchase price, and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Pledgor as a credit against the Bank purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (Claires Stores Inc), Credit Agreement (Claires Stores Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Administrative Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations, including the Guarantees, under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality Law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingAdministrative Agent promptly, each Borrower agrees assemble all or part of the Collateral as directed by the Administrative Agent and make it available to the Administrative Agent at a place and time to be designated by the Administrative Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under Law, without obligation to such Grantor in respect of such occupation; provided that the Bank Administrative Agent shall have provide the rightapplicable Grantor with notice thereof prior to such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Administrative Agent shall provide the applicable Grantor with notice thereof prior to such exercise; and (iv) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawLaw) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute Law now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law Law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Administrative Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Administrative Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and the Obligations having become due and payable; (provided that the Administrative Agent shall provide the applicable Grantor with notice thereof prior to, to the extent reasonably practicable, or otherwise promptly after, exercising such rights), for the purpose of (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any licensecheck, sub-license draft, instrument or other transaction entered into item of payment for the proceeds of such policies if insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. All sums disbursed by the Bank Administrative Agent in accordance herewith connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be binding upon the Borrowers notwithstanding any subsequent cure payable, within 10 days of an Event of Default. Any royalties and other payments received demand, by the Bank Grantors to the Administrative Agent and shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the additional Secured Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsecured hereby.
Appears in 4 contracts
Sources: Security Agreement, Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Dunkin' Brands Group, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor’s right to b▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless The Secured Parties shall give Grantor ten (10) days’ written notice (which Grantor agrees is reasonable notice within the Collateral is perishable or threatens meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties’ intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Secured Parties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Secured Parties may (in its their sole and absolute discretion) determine. The Bank Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but the Bank Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Parties from any Borrower Grantor as a credit against the purchase price, and the Bank Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Secured Parties shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Secured Parties shall have entered into such an agreement all Events of Default shall Obligations have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Secured Parties may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Security Agreement (Speedcom Wireless Corp), Security Agreement (Speedcom Wireless Corp), Security Agreement (Speedcom Wireless Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral subject to the Bank on demandIntercreditor Agreement, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party under this Agreement, the UCC or other applicable law. Without limiting Law, and, subject to the generality Intercreditor Agreement, also may, (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Collateral Account, Approved Deposit Account or Approved Securities Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 6.02 of this Agreement; (v) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriateappropriate and (vi) with respect to any IP Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such IP Collateral (provided that no such demand may be made unless an Event of Default has occurred and has continued for thirty (30) days) by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such IP Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by Law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawapplicable Law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors ten (b10) Unless days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereofof determining the Grantors’ rights in the Collateral, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such agreements shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 6.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Borrower of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of, subject to the Intercreditor Agreement, (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 8.5 of the Credit Agreement or to pay any premium in whole or in part relating thereto. Any royalties All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable out-of-pocket attorneys’ fees, court costs, expenses and other payments received charges relating thereto, shall be payable, within ten (10) days of demand, by the Bank Grantors to the Collateral Agent and shall be applied in accordance with Section 8additional Secured Obligations secured hereby. The license set forth in By accepting the benefits of this Section 7(e) Agreement and each other Collateral Document, the Secured Parties expressly acknowledge and agree that this Agreement and each other Collateral Document may be enforced only by the action of the Collateral Agent and that no other Secured Party shall terminate without have any further action right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by either party once the Obligations have been indefeasibly paid in full in accordance with Collateral Agent for the Credit Agreementbenefit of the Secured Parties upon the terms of this Agreement and the other Collateral Documents.
Appears in 4 contracts
Sources: Security Agreement (Chinos Holdings, Inc.), Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of DefaultDefault and subject to the Intercreditor Agreements, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Pledgors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 4.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Pledgors 10 Business Days’ written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 4.01, the Bank any Indenture Secured Party may bid for or purchasepurchase in cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Indenture Secured Party from any Borrower Pledgor as a credit against the purchase price, and may make payment on account thereof by using any claim then due and payable to such Indenture Secured Party from any Pledgor as a credit against the Bank purchase price, and such Indenture Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 4.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement agreement, all Events of Default shall have been remedied and the Notes Obligations paid in fullhave been Discharged. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Collateral Agreement, Collateral Agreement (Claires Stores Inc), Senior Secured First Lien Notes Indenture (Claires Stores Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least a Grantor ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten (10) days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession UCC) as of the Collateral Agent’s intention to make any sale of such Grantor’s Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim Obligation then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 611 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7UCC.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc), u.s. Security Agreement (Crown Holdings Inc)
Remedies Upon Default. 14.01. If any Event of Default shall have occurred and be continuing, the Collateral Agent, on behalf of itself and the other Secured Parties, shall, in addition to all other rights given by law or by this Pledge Agreement, the Guarantee Agreements, the Credit Agreement or otherwise, have all of the rights and remedies with respect to the Pledged Collateral of a secured party under the UCC and the Collateral Agent, on behalf of itself and the other Secured Parties, may, without notice and at its option, transfer or register, and each Pledgor shall register or cause to be registered upon request therefor by the Collateral Agent, the Pledged Collateral or any part thereof on the books of the Pledged Company into the name of the Collateral Agent or the Collateral Agent’s nominee(s). In addition, with respect to any Pledged Collateral which shall then be in or shall thereafter come into the possession or custody of the Collateral Agent, the Collateral Agent may sell or cause the same to be sold at any broker’s board or at public or private sale, in one or more sales or lots, at such price or prices as the Collateral Agent may deem best, for Cash or on credit or for future delivery, without assumption of any credit risk, all in accordance with the terms and provisions of the Credit Agreement and this Pledge Agreement. The purchaser of any or all Pledged Collateral so sold shall thereafter hold the same absolutely, free from any claim, encumbrance or right of any kind whatsoever. Unless any of the Pledged Collateral threatens to decline speedily in value or is or becomes of a type sold on a recognized market, the Collateral Agent will give Pledgors reasonable notice of the time and place of any public sale thereof, or of the time after which any private sale or other intended disposition is to be made. Any sale of the Pledged Collateral conducted in conformity with reasonable commercial practices of banks, insurance companies, commercial finance companies, or other financial institutions disposing of property similar to the Pledged Collateral shall be deemed to be commercially reasonable. Any requirements of reasonable notice shall be met if such notice is mailed to the Pledgors as provided in Section 17.01 at least 10 days before the time of the sale or disposition. Any other requirement of notice, demand or advertisement for sale is, to the extent permitted by law, waived. The Collateral Agent may, in its own name or in the name of a designee or nominee, buy any of the Pledged Collateral at any public sale and, if permitted by applicable law, at any private sale. All expenses (aincluding court costs and attorneys’ fees, expenses and disbursements) Upon of, or incident to, the enforcement of any of the provisions hereof shall be recoverable from the Proceeds of the sale or other disposition of the Pledged Collateral. In view of the fact that federal and state securities laws may impose certain restrictions on the method by which a sale of the Pledged Collateral may be effected after an Event of Default, each Pledgor agrees that upon the occurrence and during the continuance of any Event of Default, the Collateral Agent may, from time to time, attempt to sell all or any part of the Pledged Collateral by means of a private placement, restricting the prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In so doing, the Collateral Agent may solicit offers to buy the Pledged Collateral, or any part of it, for Cash, from a limited number of investors who might be interested in purchasing the Pledged Collateral, and if the Collateral Agent solicits such offers from not less than three such investors that are not affiliated with the Collateral Agent, then the acceptance by the Collateral Agent of the highest offer obtained therefrom shall be deemed to be a commercially reasonable method of disposition of the Pledged Collateral.
14.02. In addition, upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal each Pledgor to exercise the rights which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not Pledgor would otherwise be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance exercise with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, respect to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Pledged Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercisedshall, at the option of the BankCollateral Agent, solely upon cease, and all such rights shall thereupon become vested in the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith Collateral Agent.
14.03. Lender Rate Contracts shall be binding upon the Borrowers secured hereby on a silent basis. Therefore, notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth provision, if any, in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with Pledge Agreement or the Credit Agreement, no holders of Lender Rate Contracts shall be able to take any action in respect of the Pledged Collateral nor instruct the Collateral Agent to take any action in respect of the Pledged Collateral in its capacity as a holder of a Lender Rate Contract.
Appears in 4 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality law and also may (a) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent promptly, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be reasonably designated by the Collateral Agent; (b) enter into any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with written notice thereof prior to such occupancy; (c) with respect to any of the Article 9 Collateral consisting of Intellectual Property, exercise the remedies set forth in Section 4.03; (d) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with written notice thereof prior to such exercise; and (e) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors and the Company ten (b10) Unless Business Days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or a portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or a portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to be commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/), Term Loan Credit Agreement (Fuller H B Co)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Lender shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, or all of the rights and remedies of a secured party under following actions at the NYUCC same or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, different times: with or without legal process (to the extent permitted by law) and with or without prior previous notice or demand for performance, to take possession of the Collateral and without liability for trespass (to except for actual damage caused by the extent permitted by lawLender's gross negligence or willful misconduct) to enter any premises where the such Collateral may be located for the purpose of taking possession of or removing the such Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under under, and subject to its obligations contained in, the UCC Uniform Commercial Code as in effect in any state or other applicable law. Without limiting the generality of the foregoing, each Borrower the Grantor agrees that the Bank Lender shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Lender shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, absolutely free from any claim or right on the part of any Borrowerthe Grantor, and each Borrower the Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or the Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. Without limiting the foregoing, upon the occurrence and during the continuance of an Event of Default, the Lender may, in its discretion, enforce the rights of the Grantor against any account debtor or other obligor in respect of any of the Receivables. Without limiting the generality of the foregoing, at any time or times that an Event of Default exists or has occurred and is continuing, the Lender may, in its discretion, at such time (bi) Unless notify any or all account debtors or other obligors in respect thereof that the Collateral Receivables have been assigned to the Lender and that the Lender has a security interest therein and the Lender may direct any or all account debtors and other obligors to make payment of the Receivables directly to the Lender, (ii) extend the time of payment of, compromise or settle, and upon any terms or conditions, any and all Receivables and thereby discharge or release the account debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any Receivable or such other obligations, but without any duty to do so, and the Lender shall not be liable to Grantor (or any Affiliate of Grantor) for any failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto and (iv) take whatever other action the Lender may deem necessary or desirable for the protection of its interests. At any time that an Event of Default exists or has occurred and is perishable continuing, at the Lender's request, any notice or threatens demand for payment sent to decline speedily any account debtor shall state that the Receivables and such other obligations have been assigned to the Lender and are payable directly and only to the Lender and the Grantor shall deliver to the Lender such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Receivables as the Lender may require. The Lender shall give the Grantor ten (10) days' written notice (which the Grantor agrees is reasonable notice within the meaning of Section 9-611 of the NYUCC) of the Lender's intention to make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Lender may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Lender may (in its sole and absolute discretion, exercised in a commercially reasonable manner) determine. The Bank Lender shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Lender may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Lender until the sale price is paid by the purchaser or purchasers thereof, but the Bank Lender shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 11, the Bank Lender may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation stay or appraisal on the part of any Borrower the Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), with respect to the Collateral or any part thereof offered for sale and the Lender or any such Lender may make payment on account thereof by using any claim then due and payable to the Bank Lender from any Borrower the Grantor as a credit against the purchase price, and the Bank Lender may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower the Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Lender shall be free to carry out such sale and purchase pursuant to such agreement agreement, and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Lender shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Lender may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Security Agreement (GS Cleantech Corp), Security Agreement (GS Energy CORP), Security Agreement (Gs Agrifuels Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAdministrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable lawRequirement of Law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable lawRequirement of Law, upon the occurrence and during the continuance of an Event of Default, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized to take the actions set forth in Sections 5.03 and 5.04. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank . The Administrative Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten applicable Grantors 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or sales on a securities exchange, shall state the board or exchange at which such sale is to be reasonable noticemade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, at the direction of the Required Lenders, as agent for and representative of the Secured Parties (orbut not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower Obligations as a credit against on account of the purchase price, and price for any Collateral payable by the Bank may, upon compliance with Administrative Agent on behalf of the terms of sale, hold, retain and dispose of Secured Parties at such property without further accountability to any Borrower thereforsale or other disposition. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Term Loan Agreement.
Appears in 4 contracts
Sources: Security Agreement (ONE Group Hospitality, Inc.), Term Loan Agreement (ONE Group Hospitality, Inc.), Security Agreement (ONE Group Hospitality, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantors 10 days' written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-504(3) Unless of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 4 contracts
Sources: Security Agreement (Century Maintenance Supply Inc), Security Agreement (Terex Corp), Security Agreement (Lpa Services Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, Default it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party under this Agreement, the UCC or other applicable law. Without limiting Law, and also may (or, at the generality request of the foregoingRequired Lenders, shall)
(i) require each Borrower Grantor to, and each Grantor agrees that it will at its expense and upon request of the Bank Collateral Agent promptly, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Collateral Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02 of this Agreement; (v) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate; (vi) with respect to any IP Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such IP Collateral (provided that no such demand may be made unless an Event of Default has occurred and is continuing) by the applicable Grantors to the Collateral Agent, the Collateral Agent being free to sell, transfer, offer for sale, otherwise dispose of such IP Collateral, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such IP Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to Patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets, and (vii) accelerate any Global Intercompany Note Obligations (or any intercompany obligations required to be evidenced and delivered under Section 2.02(b)(i)) that may be accelerated in accordance with its terms, and take or bring all actions and suits deemed necessary or appropriate to effect collection thereof, all in the same manner and to the same extent as any Grantor might have done. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. § 77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by Law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawapplicable Law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors ten (b10) Unless days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereofof determining the Grantors’ rights in the Collateral, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such agreements shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Borrower of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable out-of-pocket attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, within ten (10) days of demand, by the Grantors to the Collateral Agent and shall be additional Secured Obligations secured hereby. By accepting the benefits of this Agreement and each other Collateral Document, the Secured Parties expressly acknowledge and agree that this Agreement and each other Collateral Document may be enforced only by the action of the Collateral Agent and that no other Secured Party shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral Agent for the benefit of the Secured Parties upon the terms of this Agreement and the other Collateral Documents. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth exercise of remedies provided in this Section 7(e) 5.01 shall terminate without any further action by either party once be subject to the Obligations have been indefeasibly paid in full in accordance with the Credit Intercreditor Agreement.
Appears in 3 contracts
Sources: Second Lien Security Agreement, Second Lien Security Agreement (Advantage Solutions Inc.), First Lien Security Agreement (Advantage Solutions Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties, and it is agreed that the Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Owned Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for provided, that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove Agent shall provide the Collateral therefromapplicable Grantor with notice thereof prior to such occupancy) and, generally, to exercise any and all rights afforded to a secured party with respect to the Obligations under the UCC Uniform Commercial Code or other applicable law (provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to such exercise to the extent required by the Uniform Commercial Code or other applicable law). Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized to take the actions set forth in Sections 5.03, 5.04 and 5.05. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least applicable Grantors ten days' (10) Business Days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or a portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or a portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At In the event of a foreclosure by the Collateral Agent on any public (or, to of the extent permitted by applicable law, private) sale made Collateral pursuant to this Section, the Bank may bid for a public or purchase, free from any right of redemption, stay, valuation private sale or appraisal on the part of any Borrower (all said rights being also hereby waived and released)other disposition, the Collateral Agent or any part thereof offered Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Agent, at the direction of the Required Lenders, as agent for sale and may make representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment on account thereof by using of the purchase price for all or any claim then due portion of the Collateral sold at any such public sale, to use and payable to apply any of the Bank from any Borrower Obligations as a credit against on account of the purchase price, and price for any Collateral payable by the Bank may, upon compliance with Collateral Agent on behalf of the terms of sale, hold, retain and dispose of Secured Parties at such property without further accountability to any Borrower thereforsale or other disposition. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Security Agreement (MSG Entertainment Spinco, Inc.), Security Agreement (MSG Entertainment Spinco, Inc.), Security Agreement (Madison Square Garden Co)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is soughtof, in addition or all, the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Collateral by the applicable Grantors to the Administrative Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is located, including, without limitation, Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the right, extent that waivers cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the New York UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to Administrative Agent may sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-612 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower such Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement agreement; and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 6.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Security Agreement (Jupitermedia Corp), Security Agreement (Jupitermedia Corp), Security Agreement (Jupitermedia Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice (except any notice required by law) or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, subject to Section 5.02 of this Agreement, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable lawjurisdictions. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise Any remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing provided in this Section 7 5.01 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants subject to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Intercreditor Agreement.
Appears in 3 contracts
Sources: Second Lien Credit Agreement (STR Holdings LLC), Second Lien Credit Agreement (STR Holdings, Inc.), Second Lien Credit Agreement (STR Holdings (New) LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an a Noticed Event of Default, the Borrowers shall each Guarantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Guarantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then existing licensing arrangements to the extent that waivers thereunder cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Guarantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGuarantor, and each Borrower Guarantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Guarantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Guarantors 10 Business Days’ written notice (bwhich each Guarantor agrees is reasonable notice within the meaning of Section 9 612 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Guarantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Guarantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Guarantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (Celanese CORP), Credit Agreement (Celanese CORP), Guarantee and Collateral Agreement (Celanese CORP)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of DefaultDefault under and as defined in the Notes, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, including without limitation, a payment default under the rightNotes, with Secured Parties may (subject in all instances to Article 3 of the Notes) pursue any or without legal process all of the following remedies:
(a) Secured Parties shall give written notice of default to the extent permitted by law) and with Debtor, following which Debtor shall not dispose of, conceal, transfer, sell or without prior notice or demand for performance, to take possession encumber any of the Collateral and (including, but not limited to, cash proceeds) without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank maySecured Parties prior written consent, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time except in the future have under any rule ordinary course of law or statute now existing or hereafter enactedbusiness.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it Secured Parties may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession dispose of the Collateral and at private or public sale in accordance with the applicable provisions of the UCC. Any required notice of sale shall be deemed commercially reasonable if given at least twenty (20) days prior to exercise its rights with respect theretosale.
(c) Any such public sale shall be held at such time Secured Parties may exercise their lien upon and right of setoff against any monies, items, credits, deposits or times within ordinary business hours instruments that Secured Parties may have in their possession and at such place that belong to Debtor or places as to any other person or entity liable for the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale payment of any Collateral if it shall determine not to do so, regardless or all of the fact Obligations.
(d) Secured Parties may exercise any right that notice of sale of such Collateral shall they may have been given. The Bank may, without notice under any other document evidencing or publication, adjourn any public securing the Obligations or private sale otherwise available to Secured Party at law or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public equity.
(or, e) Notwithstanding anything herein to the extent permitted by applicable lawcontrary, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Secured Parties shall not be entitled to exercise any rights with respect to the return Collateral to the extent that the reasonable value of the Collateral exceeds the amount then due and owing to the Secured Parties.
(f) The Secured Party acknowledges and agrees that Collateral is subject to security interests granted to other secured parties by the Debtor. In exercising any of Secured Parties’ rights hereunder, the Secured Parties shall undertake to (i) coordinate its efforts with such other secured parties to minimize any inconvenience to the Secured Parties or disruption to its business activities, and (ii) effect the exercise of their rights hereunder so as to not adversely affect in any manner the value of the Collateral or any portion thereof subject thereto, notwithstanding to impose costs or obligations on Secured Parties in excess of what Secured Parties would reasonably be expected to bear were the fact that after Debtor the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance sole party with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, rights to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Interest Contribution Agreement (First Capital Real Estate Trust Inc), Interest Contribution Agreement (Photomedex Inc), Security Agreement (Photomedex Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance continuation of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent, includingfor the ratable benefit of the Secured Parties, without limitationor to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (determine in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement agreement, all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (AGA Medical Holdings, Inc.), Guarantee and Collateral Agreement (Usp Mission Hills, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral subject to the Bank on demandIntercreditor Agreement, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party under this Agreement, the UCC or other applicable law. Without limiting Law, and, subject to the generality Intercreditor Agreement, also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with thereof prior to or promptly after such occupancy (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Deposit Account or Securities Account (other than an Excluded Account) and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02 of this Agreement; (v) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriateappropriate and (vi) with respect to any IP Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such IP Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such IP Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to Patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by Law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawapplicable Law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors ten (b10) Unless days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereofof determining the Grantors’ rights in the Collateral, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such agreements shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Issuers of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and (ii) making all determinations and decisions with respect thereto. Any royalties All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable out-of-pocket attorneys’ fees, court costs, expenses and other payments received charges relating thereto, shall be payable, within ten (10) days of demand, by the Bank Grantors to the Collateral Agent and shall be applied in accordance with Section 8additional Secured Obligations secured hereby. The license set forth in By accepting the benefits of this Section 7(e) Agreement and each other Security Document, the Secured Parties expressly acknowledge and agree that this Agreement and each other Security Document may be enforced only by the action of the Collateral Agent and that no other Secured Party shall terminate without have any further action right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by either party once the Obligations have been indefeasibly paid in full in accordance with Collateral Agent for the Credit Agreementbenefit of the Secured Parties upon the terms of this Agreement and the other Security Documents.
Appears in 3 contracts
Sources: Security Agreement (J Crew Group Inc), Security Agreement (J Crew Group Inc), Restructuring Support Agreement (J Crew Group Inc)
Remedies Upon Default. (a) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreements, the Collateral Agent may, following written instruction from the Applicable First Lien Agent, take any action specified in this Section 4.01. Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, following written instruction from the Applicable First Lien Agent, to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Pledgors to the Collateral Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable lawlaw or in equity. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and following written instruction from the Applicable First Lien Agent, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 4.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . To the extent any notice is required by applicable law, the Collateral Agent shall give the applicable Pledgors ten (10) Business Days’ written notice (which each Pledgor agrees is perishable reasonable notice within the meaning of Section 9-611 of the New York UCC or threatens its equivalent in other jurisdictions) of the Collateral Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 4.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 4.02 without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: First Lien Collateral Agreement, First Lien Collateral Agreement (Momentive Performance Materials Inc.), Collateral Agreement (Momentive Performance Materials Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which the Collateral is located, including, without limitation, the right, each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . The Administrative Agent shall, except in the case of Collateral that is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, give the Bank shall give to the Borrowers at least ten days' prior applicable Pledgors 10 Business Days’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. For the UCC avoidance of any other jurisdiction doubt, with respect to Real Property Collateral, the remedies set forth in which the Mortgages applicable to such Real Property Collateral is located or any other requirement shall control and the foregoing provisions of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, this Section shall apply to such Real Property Collateral only to the extent that permitted by applicable law imposes duties on and the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do provisions of any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods applicable Mortgage or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7document.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (Verso Paper Corp.), Guarantee and Collateral Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Pledgors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . The Collateral Agent shall, except in the case of Collateral that is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, give the Bank shall give to the Borrowers at least ten days' prior applicable Pledgors 10 Business Days’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Note Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. For the UCC avoidance of any other jurisdiction doubt, with respect to Real Property Collateral, the remedies set forth in which the Mortgages applicable to such Real Property Collateral is located or any other requirement shall control and the foregoing provisions of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, this Section shall apply to such Real Property Collateral only to the extent that permitted by applicable law imposes duties on and the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do provisions of any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods applicable Mortgage or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7document.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Collateral Agreement (Verso Paper Holdings LLC), Collateral Agreement (Verso Paper LLC), Indenture (Verso Paper Corp.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor's right to ▇▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless The Secured Parties shall give Grantor ten (10) days' written notice (which Grantor agrees is reasonable notice within the Collateral is perishable or threatens meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties’ intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Secured Parties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Secured Parties may (in its their sole and absolute discretion) determine. The Bank Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but the Bank Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Parties from any Borrower Grantor as a credit against the purchase price, and the Bank Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Secured Parties shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Secured Parties shall have entered into such an agreement all Events of Default shall Obligations have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Secured Parties may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Security Agreement (Datalogic International Inc), Security Agreement (World Racing Group, Inc.), Pledge and Security Agreement (Axm Pharma Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, at the same or different times, with respect to any Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or without legal process all such Collateral by the applicable Grantors to the Administrative Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent permitted by law) and with or without prior notice or demand for performancethat waivers cannot be obtained), to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Obligations at a public or private sale or at any broker's board or on any securities exchangesale, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. Notwithstanding the foregoing, unless and until a “Statement of Use” or an “Amendment to Allege Use” has been filed and accepted in the United States Patent and Trademark Office, it is agreed that the Administrative Agent’s right to assign, transfer or convey any Trademark Collateral for which an application is pending under Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051(b), or any of its successors or counterparts, shall only be exercised if any such assignment, transfer or conveyance occurs in connection with the transfer of the business (bor the portion of the business) Unless to which such Trademark Collateral pertains and is made to the Collateral successor of that business. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (which each Grantor agrees is perishable reasonable notice within the meaning of Section 9-611 of the New York UCC or threatens its equivalent in other jurisdictions) of the Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be madefor such sale. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 3.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Customer Management Group, LLC), Credit Agreement (West Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least a Grantor ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten (10) days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession UCC) of the Collateral Agent’s intention to make any sale of such Grantor’s Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim Obligation then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 611 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7UCC.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Security Agreement (Constar Inc), Security Agreement (Constar International Inc), Security Agreement (Constar International Inc)
Remedies Upon Default. (a) Upon In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing or contractual arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, in accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten Grantors 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession NY UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, in accordance with, and to the Bank extent consistent with, the terms of the Intercreditor Agreement, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Domestic Security Agreement (Pliant Corp), Domestic Security Agreement (Pliant Corp), Security Agreement (Pliant Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which the Collateral is located, including, without limitation, the right, each Grantor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Loan Obligations under the UCC applicable Uniform Commercial Code or other applicable lawlaw or in equity. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Loan Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. To the extent any notice is required by applicable law, the Administrative Agent shall give the applicable Grantors 10 Business Days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Loan Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Term Loan Agreement (Realogy Group LLC), Guarantee and Collateral Agreement (Realogy Group LLC), Guarantee and Collateral Agreement (Realogy Holdings Corp.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition or all of the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent (except to the extent assignment, includingtransfer or conveyance thereof would result in a loss of said Intellectual Property), without limitationor to license or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantors 10 days' written notice (bwhich each Grantor agrees is a "reasonable authenticated notification of disposition" within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim Indenture Obligation then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) hereof a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Indenture Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Security Agreement (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral subject to the Bank on demandABL Intercreditor Agreement, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party under this Agreement, the UCC or other applicable law. Without limiting Law, and, subject to the generality ABL Intercreditor Agreement, also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Collateral Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02 of this Agreement; (v) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriateappropriate and (vi) with respect to any IP Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such IP Collateral (provided that no such demand may be made unless an Event of Default has occurred and has continued for thirty (30) days) by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such IP Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by Law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawapplicable Law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors ten (b10) Unless days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable Law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereofof determining the Grantors’ rights in the Collateral, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such agreements shall include all terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the IP Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Borrower of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of, subject to the ABL Intercreditor Agreement, (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. Any royalties All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable out-of-pocket attorneys’ fees, court costs, expenses and other payments received charges relating thereto, shall be payable, within ten (10) days of demand, by the Bank Grantors to the Collateral Agent and shall be applied in accordance with Section 8additional Secured Obligations secured hereby. The license set forth in By accepting the benefits of this Section 7(e) Agreement and each other Collateral Document, the Secured Parties expressly acknowledge and agree that this Agreement and each other Collateral Document may be enforced only by the action of the Collateral Agent and that no other Secured Party shall terminate without have any further action right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by either party once the Obligations have been indefeasibly paid in full in accordance with Collateral Agent for the Credit Agreementbenefit of the Secured Parties upon the terms of this Agreement and the other Collateral Documents.
Appears in 3 contracts
Sources: Security Agreement (Chinos Holdings, Inc.), Security Agreement (J Crew Group Inc), Credit Agreement (J Crew Group Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an any Event of DefaultDefault that, after proper Notice of Default (if applicable) was served, was not cured as provided in Section 9 above, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Secured Party shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, may pursue all of the rights and remedies of a secured party under as provided in the NYUCC Uniform Commercial Code or otherwise available to it at law or in equity to collect, enforce or satisfy any Obligations then owing, whether by acceleration or otherwise.
(b) Without limiting the UCC foregoing, Grantors expressly agree that in any such event the Secured Party, without demand of performance or other demand, advertisement or notice of any jurisdiction in kind (except notices of time and place of public sale or private sale) to or upon the Grantors (all and each of which the Collateral is locateddemands, including, without limitation, the right, with or without legal process (advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law) and with shall have the right to pursue any of the following remedies separately, successively or without prior notice or demand for performance, to simultaneously: (i) take possession of all or any of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking if not in its possession of or removing the Collateral (wherever found, and for that purpose the Bank may, so far as Secured Party may enter the premises of the Grantors where any Borrower can give authority therefor, enter upon any premises on which Collateral is located through self-help to obtain possession of the Collateral without first obtaining any court order or giving Grantors or any other person notice and an opportunity for a hearing and may be situated collect, receive, assemble, process, appropriate and remove realize upon the Collateral therefromCollateral, or any part thereof; (ii) andwith or without taking possession, generallysell, lease, assign, give an option or options to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell purchase or otherwise dispose of all and deliver said Collateral or any part of the Collateralthereof, in one or more parcels at a public or private sale or sales, at any broker's board exchange at such prices as it may deem acceptable, for cash or on credit in accordance with the Uniform Commercial Code; or (iii) deduct from the proceeds of sale of Collateral all unpaid Obligations, court costs, other expenses such as moving, storage, and repair of the Collateral, any securities exchange, expenses incurred for cashthe preservation or renovation of the Collateral for purposes of sale as the Secured Party may be entitled to under the Uniform Commercial Code.
(c) Grantors further agree, upon credit the Secured Party’s request, to assemble and make the Collateral available to the Secured Party at places which the Secured Party shall select, whether at Grantors’ premises or for future delivery as elsewhere. Until the Bank Secured Party is able to effect a sale, lease or other disposition of Collateral, the Secured Party shall deem appropriate. Each such purchaser at have the right to hold or use the Collateral, or any such sale shall hold the property sold absolutelypart thereof, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Secured Party, The Secured Party shall have no obligation to Grantors to maintain or preserve the rights of the Grantors as against third parties with respect to Collateral while Collateral is in the possession of the Secured Party. The Secured Party may, if it so elects, seek appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Parties’ remedies with respect to such appointment without prior notice or hearing as to such appointment. To the maximum extent permitted by applicable law) , Grantors waive all rights claims, damages and demands against the Secured Party arising out of redemptionthe repossession, stay, valuation and appraisal which such Borrower retention or now has or may at any time in the future have under any rule sale of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable except such as may arise solely out of gross negligence or threatens to decline speedily in value or is willful misconduct of the Secured Party as finally determined by a type customarily sold on a recognized market, court of competent jurisdiction. Grantors agree that ten (10) days prior notice by the Bank shall give to the Borrowers at least ten days' prior written notice Secured Party of the time and place of any public sale of Collateral or of the time after which any a private sale or any other intended disposition may take place is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice reasonable notification of such matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession disposition of the Collateral and are insufficient to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time pay all Obligations, including attorneys’ fees or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained other expenses incurred by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any Secured Party to collect such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiverdeficiency.
(d) Any sale conducted in accordance with No delay or omission by the provisions Secured Party to exercise any right or remedy upon any Event of this Section 7 Default shall be deemed impair any right or remedy or waive any default or operate as acquiescence to conform to commercially reasonable standards as provided in Section 9-610 the Event of Default or affect any subsequent default or Event of Default of the NYUCC same or a different nature. The Secured Party has no obligation to clean up or otherwise prepare the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateralsale. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank Secured Party to exercise its rights and remedies under this Sectionhereunder (including, each Borrower without limitation, in order to take possession of, hold, preserve, process, assemble, prepare for sale, market for sale, sell otherwise dispose of Collateral) the Grantors hereby grants to grant the Bank an Secured Party a fully paid-up, irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any BorrowerGrantors) to use, license or sub-license sublicense any of the Grantors’ intellectual property to sell or otherwise dispose of any Collateral.
(e) The Secured Party may comply with any applicable legal requirements in connection with the sale or other disposition of Collateral and such compliance will not be considered to affect adversely the commercial reasonableness of any sale or other disposition of Collateral. The Secured Party may sell the Collateral without any warranties and may specifically disclaim any warranties to the extent permitted by law and this procedure shall not be considered to affect adversely the commercial reasonableness of any sale or other disposition of Collateral. If the Secured Party sells any of the Collateral consisting on credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Secured Party and applied to the satisfaction of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever Obligations. In the same may be located, and including in such license reasonable access to all media in which event the Secured Party purchases any of the licensed items Collateral being sold, the Secured Party may be recorded or stored and to all computer software and programs used pay for the compilation Collateral by crediting some or printout thereofall of the Obligations to the extent permitted by applicable law. The use Secured Party shall have no obligation to marshal any assets in favor of such license the Grantors or against or in payment of any of the Obligations or any other obligation owed to the Secured Party by the Bank Grantors or any other person.
(f) The Secured Party has no obligation to attempt to satisfy the Obligations by collecting them from any other party, and the Secured Party may be exercisedrelease, at the option modify or waive any Collateral provided by any other person to secure any of the BankObligations, solely upon all without affecting the occurrence and during Secured Party’s rights or remedies against the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8Grantors. The license set forth Grantors waives to the extent permitted by applicable law any rights it may have to require the Secured Party to pursue any third person for any of the Obligations.
(g) Except as otherwise specifically provided herein, Grantors hereby waive presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Section 7(e) shall terminate without Security Agreement or any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit AgreementCollateral.
Appears in 3 contracts
Sources: Security Agreement (Jennifer Convertibles Inc), Security Agreement (Jennifer Convertibles Inc), Security Agreement (Jennifer Convertibles Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall subject to applicable Requirements of Law, each Pledgor agrees to deliver each item of Collateral to the Bank Agent on demand, and it is agreed that the Bank Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is located, including, without limitation, Agent shall determine (other than in violation of any then-existing licensing arrangements to the right, extent that waivers thereunder cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Agent shall deem appropriate. The Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 4.01, the Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank . The Agent shall give to the Borrowers at least ten applicable Pledgors 10 days' prior ’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the time and place New York UCC or its equivalent in other jurisdictions) of the Agent’s intention to make any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such saleCollateral. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Agent may (in its sole and absolute discretion) determine. The Bank Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 4.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted . To the extent provided in accordance with the provisions of this Section 7 4.01, any sale that complies with such provisions shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Talos Energy Inc.), Credit Agreement (Talos Energy Inc.), Credit Agreement (MBOW Four Star, L.L.C.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent promptly, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) enter into any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to such occupancy; (iii) require each Borrower Grantor to, and each Grantor agrees that it will at its expense and upon the Bank shall have request of the Collateral Agent promptly, assign the entire right, title, and interest of such Grantor in each of the Patents, Trademarks, domain names and Copyrights to the Collateral Agent for the benefit of the Secured Parties; (iv) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to such exercise; and (v) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors and Parent ten (b10) Unless Business Days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or a portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or a portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of Collateral to the Bank Lender on demand, and it is agreed that the Bank Lender shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, or all of the rights and remedies of a secured party under following actions at the NYUCC same or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, different times: with or without legal process (to the extent permitted by law) and with or without prior previous notice or demand for performance, to take possession of the Collateral and without liability for trespass (to except for actual damage caused by the extent permitted by lawLender's gross negligence or willful misconduct) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under under, and subject to its obligations contained in, the UCC Uniform Commercial Code as in effect in any state or other applicable law. Without limiting the generality of the foregoing, each Borrower the Grantor agrees that the Bank Lender shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Lender shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, absolutely free from any claim or right on the part of any Borrowerthe Grantor, and each Borrower the Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or the Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure continuance of an Event of Default. Any royalties , immediately upon Lender's demand Grantor shall transfer all Collateral in its possession, including but not limited to all proceeds of Collateral, to Lender, and other payments received shall execute all documents reasonably requested by Lender to effectuate the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreementtransfer of such Collateral to Lender.
Appears in 3 contracts
Sources: Subordinated Security Agreement (Winwin Gaming Inc), Security Agreement (Winwin Gaming Inc), Security Agreement (Winwin Gaming Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law, to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Grantor to the Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At Subject to the prior written consent of the Collateral Agent, at any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. Prior to the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges thatExit Facility Conversion Date, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant execution by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all Agent or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition Secured Party of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any Agreement would be in violation of the Collateral consisting automatic stay provision of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any Section 362 of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of Bankruptcy Code, such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith stay shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license modified as set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with DIP Orders, to the Credit Agreementextent necessary to permit such exercise.
Appears in 3 contracts
Sources: Revolving Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Term Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral subject to the Bank on demandABL Intercreditor Agreement, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party under this Agreement, the UCC or other applicable law. Without limiting , and, subject to the generality ABL Intercreditor Agreement, also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from any Collateral Account and apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02; (v) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate; and (vi) with respect to any Intellectual Property Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Intellectual Property Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Intellectual Property Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, notice, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and confidentiality protections for trade secrets. Each Grantor acknowledges and recognizes that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, (b) private sales so made may be at prices and upon other terms less favorable to the seller than if such securities were sold at public sales, (c) neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Collateral for the period of time necessary to permit such securities to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. To the maximum extent permitted by applicable law, each Grantor hereby waives any claim against any Secured Party arising because the price at which any Collateral may have been sold at a private sale was less than the price that might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. The Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At In the event of a foreclosure or similar enforcement action by the Collateral Agent on any public (or, to of the extent permitted by applicable law, private) sale made Collateral pursuant to this Sectiona public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and releasedBankruptcy Code), the Collateral Agent (or any part thereof offered Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and may make payment on account thereof by using apply any claim then due and payable to of the Bank from any Borrower Secured Obligations as a credit against on account of the purchase price, and price for any Collateral payable by the Bank may, upon compliance with the terms of sale, hold, retain and dispose of Collateral Agent at such property without further accountability to any Borrower thereforsale or other disposition. For purposes hereofof determining the Grantors’ rights in the Collateral, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full, provided, however, that such terms shall include terms and restrictions that are customarily required to ensure the continuing validity and effectiveness of the Intellectual Property Collateral at issue, such as, without limitation, quality control and inurement provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software, and protecting the confidentiality of trade secrets. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Borrower of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of, subject to the ABL Intercreditor Agreement, (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 5.5 of the Credit Agreement or to pay any premium in whole or in part relating thereto. Any royalties All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other payments received charges relating thereto, shall be payable, within 30 days of written demand, by the Bank Grantors to the Collateral Agent and shall be applied additional Secured Obligations secured hereby. By accepting the benefits of this Agreement and each other Collateral Document, the Secured Parties expressly acknowledge and agree that except with respect to the exercise of setoff rights of any Lender or with respect to a Secured Party’s right to file a proof of claim in accordance with Section 8. The license set forth in this Section 7(e) any proceeding under the Debtor Relief Laws, no Secured Party shall terminate without have any further action right individually to realize upon any of the Collateral or to enforce any Obligations Guarantee, it being understood and agreed that all powers, rights and remedies under the Credit Documents may be exercised solely by either party once the Obligations have been indefeasibly paid in full Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the Credit Agreementterms thereof and that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms of this Agreement and the other Collateral Documents.
Appears in 3 contracts
Sources: Term Pledge and Security Agreement, Term Pledge and Security Agreement (Entegris Inc), Abl Pledge and Security Agreement (Entegris Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to deliver, on demand, each item of Collateral to the Bank Administrative Agent or any Person designated by the Administrative Agent, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent, for the benefit of the Secured Parties, or to license or sublicense, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAdministrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performanceperformance but with notice (which need not be prior notice), to take possession of the Article 9 Collateral and the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Pledged Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors no less than 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Collateral Agreement, Collateral Agreement (SMART Global Holdings, Inc.), Collateral Agreement (SMART Global Holdings, Inc.)
Remedies Upon Default. (a) Upon Subject to the occurrence and during terms of the continuance of Intercreditor Agreement, if an Event of DefaultDefault occurs and is continuing, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Notes Collateral Agent on demand, and it is agreed that the Bank Notes Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, at the same or different times, with respect to any Collateral, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or without legal process all such Collateral by the applicable Grantors to the Notes Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Notes Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent permitted by law) and with or without prior notice or demand for performancethat waivers cannot be obtained), to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Notes Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's board or on any securities exchangesale, for cash, upon credit or for future delivery as the Bank Notes Collateral Agent shall deem appropriate. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Notes Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Notes Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be madefor such sale. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Notes Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Notes Collateral Agent may (in its sole and absolute discretion) determine. The Bank Notes Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Notes Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Notes Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Notes Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Notes Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Notes Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Notes Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 3.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Intellectual Property Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAdministrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower the Grantors hereby waives waive (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (Polypore International, Inc.), Guarantee and Collateral Agreement (Polypore International, Inc.), Guarantee and Collateral Agreement (Daramic, LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of tangible Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) such Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law, provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten applicable Grantors 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At In the event of a foreclosure or similar enforcement action by the Collateral Agent on any public (or, to of the extent permitted by applicable law, private) sale made Collateral pursuant to this Sectiona public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and releasedBankruptcy Code), the Collateral Agent (or any part thereof offered Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or any other applicable section of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Requisite Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold or licensed at any such sale or other disposition, to use and may make payment on account thereof by using apply any claim then due and payable to of the Bank from any Borrower Obligations as a credit against on account of the purchase price, and price for any Collateral payable by the Bank may, upon compliance with the terms of sale, hold, retain and dispose of Collateral Agent at such property without further accountability to any Borrower thereforsale or other disposition. For purposes hereof, (i) a written binding agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in fullremedied. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Navistar International Corp), Credit Agreement (Navistar International Corp), Credit Agreement (Navistar International Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained); and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale of Collateral the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which the Collateral is located, including, without limitation, the right, each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . The Administrative Agent shall, except in the case of Collateral that is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, give the Bank shall give to the Borrowers at least ten days' prior applicable Pledgors 10 Business Days’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (Verso Sartell LLC), Credit Agreement (Verso Paper Holdings LLC), Guarantee and Collateral Agreement (Verso Paper Corp.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice (except any notice required by law) or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, subject to Section 5.02 of this Agreement, notwithstanding the fact that after the Bank Collateral Absent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable lawjurisdictions. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise Any remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing provided in this Section 7 5.01 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants subject to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Intercreditor Agreement.
Appears in 3 contracts
Sources: Second Lien Guarantee and Collateral Agreement (STR Holdings, Inc.), Second Lien Guarantee and Collateral Agreement (STR Holdings LLC), Second Lien Guarantee and Collateral Agreement (STR Holdings (New) LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Agent on demand, and it is agreed that the Bank Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition or all of the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is locatedAgent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained), including, without limitation, the right, (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law, (c) foreclose any Mortgage without first foreclosing the security interest herein created over the mortgage note secured by such Mortgage and (d) instead of exercising the power of sale herein conferred upon it, proceed by suits at law or in equity to foreclose the lien granted by any of the Mortgages and sell the Mortgaged Property or any portion thereof under one or more judgments or decrees of a court or courts of competent jurisdiction. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Agent shall deem appropriate. The Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 4.01 the Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank . The Agent shall give to the Borrowers at least ten applicable Pledgors 10 days' prior ’ written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the time and place New York UCC or its equivalent in other jurisdictions) of the Agent’s intention to make any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such saleCollateral. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Agent may (in its sole and absolute discretion) determine. The Bank Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 4.01, the Bank any Secured Party may credit bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Collateral Agreement, Collateral Agreement (Great Wolf Resorts, Inc.), Collateral Agreement (EVERTEC, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Pledgors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent (acting at the written direction of the Required Lenders) shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent (acting at the written direction of the Required Lenders) shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof upon consummation of any such sale of Collateral pursuant to this Section 5.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Pledgors 10 Business Days’ written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent (acting at the written direction of the Required Lenders) may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase in cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Pledgor as a credit against the purchase price, and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Pledgor as a credit against the Bank purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Claires Stores Inc), Guarantee and Collateral Agreement (Claires Stores Inc)
Remedies Upon Default. If any Event of Default shall have occurred and be continuing:
(a) Upon The Collateral Agent may exercise in respect of the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is soughtCollateral, in addition to any other rights and remediesremedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party upon default under the NYUCC Code (whether or not the UCC Code applies to the affected Collateral), and also may take absolute control of any jurisdiction in which the Collateral is locatedCollateral, including, without limitation, transfer into the right, with Collateral Agent’s name or without legal process into the name of its nominee or nominees (to the extent permitted by lawthe Collateral Agent has not theretofore done so) and thereafter receive, for the benefit of each Secured Party, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with or without prior notice or demand for performance, to take possession of respect thereto as though it were the outright owner thereof.
(b) Any cash held by the Collateral Agent (or its agent or designee) as Collateral and without liability for trespass (to the extent permitted all Cash Proceeds received by law) to enter any premises where the Collateral may be located for the purpose Agent (or its agent or designee) in respect of taking possession any sale of or removing the Collateral (and for that purpose the Bank maycollection from, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoingrealization upon, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public may, in the discretion of the Collateral Agent, be held by the Collateral Agent (or private sale its agent or designee) as collateral for, and/or then or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part time thereafter applied (after payment of any Borrower, and each Borrower hereby waives (amounts payable to the extent permitted Collateral Agent pursuant to Section 10 hereof) in whole or in part by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized marketAgent against, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, Secured Obligations in such order as the Collateral so sold may be retained Agent shall elect, consistent with the provisions of the Securities Purchase Agreement and the Notes. Any surplus of such cash or Cash Proceeds held by the Bank until Collateral Agent (or its agent or designee) and remaining after the sale price is Termination Date shall be paid by over to whomsoever shall be lawfully entitled to receive the purchaser same or purchasers thereof, but as a court of competent jurisdiction shall direct.
(c) In the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for event that the Collateral so sold and, in case proceeds of any such failuresale, collection or realization are insufficient to pay all amounts to which each Secured Party is legally entitled, the Company and the Guarantors shall be jointly and severally liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Transaction Document for interest on overdue principal thereof or such Collateral may other rate as shall be sold again upon like notice. At any public (or, to the extent permitted fixed by applicable law, private) sale made pursuant to this Sectiontogether with the costs of collection and the reasonable fees, the Bank may bid for or purchasecosts, free from any right of redemption, stay, valuation or appraisal on the part expenses and other client charges of any Borrower (all said rights being also hereby waived and released), attorneys employed by the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable Agent to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of collect such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiverdeficiency.
(d) Any The Company hereby acknowledges that if the Collateral Agent complies with any applicable requirements of law in connection with a disposition of the Collateral, such compliance will not adversely affect the commercial reasonableness of any sale conducted or other disposition of the Collateral.
(e) The Collateral Agent shall not be required to marshal any present or future collateral security (including, but not limited to, this Agreement and the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in accordance with any particular order, and all of the provisions Collateral Agent’s rights hereunder and in respect of this Section 7 such collateral security and other assurances of payment shall be deemed cumulative and in addition to conform all other rights, however existing or arising. To the extent that the Company lawfully may, the Company hereby agrees that it will not invoke any law relating to commercially reasonable standards as provided the marshalling of collateral which might cause delay in Section 9-610 or impede the enforcement of the NYUCC Collateral Agent’s rights under this Agreement or the UCC of under any other jurisdiction in instrument creating or evidencing any of the Secured Obligations or under which Collateral any of the Secured Obligations is located outstanding or by which any other requirement of applicable law. Without limiting the foregoingSecured Obligations is secured or payment thereof is otherwise assured, any Borrower agrees and acknowledges thatand, to the extent that applicable law imposes duties on it lawfully may, the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for Company hereby irrevocably waives the Bank to do any or benefits of all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7such laws.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 3 contracts
Sources: Pledge Agreement (Cryptyde, Inc.), Pledge Agreement (Cryptyde, Inc.), Pledge Agreement (Vinco Ventures, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of If an Event of DefaultDefault has occurred and is continuing, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent (or a designated bailee, in accordance with any applicable Intercreditor Agreement(s)) on demand, and it is agreed that the Bank Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, subject to applicable law and any applicable Intercreditor Agreement(s), to take any of or all the following actions at the same or different times: (1) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or without legal process all such Article 9 Collateral by the applicable Grantors to the Collateral Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a non-exclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent permitted by lawthat waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Grantor hereby agrees to use) and with or without prior notice or demand for performance, (2) to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of of, removing or removing selling the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoingforegoing rights and remedies, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw (including the Uniform Commercial Code), to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors ten Business Days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the The Collateral, or the portion thereof, to be sold at any such sale may be sold in one lot as an entirety or in separate parcelsparcels in the Collateral Agent’s own right or by one or more agents and contractors, upon any premises owned, leased, or occupied by any Grantor and the Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory to be sold with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor), all as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable lawjurisdictions. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all other rights of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the BorrowersAgent under this Agreement, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank Collateral Agent to exercise rights and remedies under this SectionArticle V at such time as Collateral Agent shall be lawfully entitled to exercise, after an Event of Default has occurred and is continuing, such rights and remedies, and for no other purpose, each Borrower Grantor hereby grants to the Bank an irrevocableCollateral Agent, to the extent licensable, and to the extent not resulting in a material breach, material violation or termination of any Trademark License, a royalty free, non-exclusive exclusive, irrevocable license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of effective after an Event of Default has occurred and while it is continuing), to use, apply, and affix any Trademark in which any Grantor now or hereafter has rights, solely in connection with the Obligations having become due and payable; Collateral Agent’s enforcement of rights or remedies hereunder, including in connection with any sale or other disposition of Inventory, provided that any license, sub-license or other transaction entered into such use is consistent with the use of such Trademark employed by the Bank Grantor in accordance herewith the ordinary conduct of such Grantor’s business and Grantor shall be binding upon have rights of quality control and inspection that are reasonably necessary to maintain the Borrowers notwithstanding any subsequent cure validity and enforceability of an Event of Defaultsuch Trademarks. Any royalties As to each Grantor, the license granted hereby shall remain in full force and other payments received by the Bank shall be applied effect until such Grantor hereunder is released hereunder in accordance with Section 87.15 of this Agreement. The license set forth in this Section 7(e) Any exercise of remedies by the Collateral Agent shall terminate without any further action by either party once be subject to the Obligations have been indefeasibly paid in full in accordance with the Credit Agreementapplicable Intercreditor Agreement(s).
Appears in 3 contracts
Sources: Term Loan Guarantee and Collateral Agreement, Term Loan Guarantee and Collateral Agreement (Amneal Pharmaceuticals, Inc.), Abl Guarantee and Collateral Agreement (Impax Laboratories, LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of --------------------- Default, the Borrowers Lender shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is soughthave, in addition to any other rights and remediesgiven by law or the rights hereunder, all of the rights and remedies with respect to the Collateral of a secured party under the NYUCC California Uniform Commercial Code. In addition, with respect to the Collateral, or any part thereof, Lender may sell or cause the UCC same to be sold at any public or private sale, in one or more sales or lots, at such price as Lender may deem best, and for cash or on credit or for future delivery, without assumption of any jurisdiction in which credit risk, and the purchaser of any or all of the Collateral so sold shall thereafter hold the same absolutely, free from any claim, encumbrance or right of any kind whatsoever. Any sale of the Collateral conducted in conformity with reasonable commercial practices of banks, insurance companies or other financial institutions disposing of property similar to the Collateral shall be deemed to be commercially reasonable. Any requirements of reasonable notice shall be met if such notice is locatedmailed to Pledgor, includingat the address set forth in this Agreement, without limitationat least ten (10) calendar days before the time of the sale or disposition. Any other retirement of notice, the rightdemand or advertisement for sale, with or without legal process (is, to the extent permitted by law) , waived. Lender may, in its own name, or in the name of a designee or nominee, buy at any public sale of the Collateral. Lender shall have the right to execute any document or form, in its name or in the name of the Pledgor, which may be necessary or desirable in connection with such sale of Collateral. In addition to specific rights provided herein with respect to sales of the Shares, and subject to applicable law, sales of the Collateral may be conducted with or without demand and with or without prior notice or demand advertisement, for performancecash, to take possession of credit or for future delivery, all as the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable lawLender shall deem appropriate. Without limiting the generality foregoing, the Lender may (i) approach and negotiate with potential purchasers, and (ii) restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing such Collateral for their own account for investment and not with a view to the distribution or resale thereof. In the event any such Collateral is sold at private sale, Pledgor agrees that such sale shall not, by reason merely that it is a private sale subject to the potential restrictions described herein, or that there is a possibility that a substantially higher price might have been realized at a public sale, be deemed to have not been made in a commercially reasonable manner. Pledgor recognizes that no ready market may exist for such Collateral and that a sale by Lender of any such Collateral for an amount substantially less than the value of the foregoingShares may be commercially reasonable in view of the difficulties that may be encountered in attempting to sell securities that are not publicly traded. Upon consummation of any such sale, each Borrower agrees that the Bank Lender shall have the rightright to assign, subject transfer and deliver to the mandatory requirements of applicable lawpurchaser or purchasers thereof, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank shall deem appropriateCollateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, absolutely free from any claim or right on the part of any Borrower, and each Borrower the Pledgor. Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and stay and/or appraisal which such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable . If any consent, ruling or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place authorization of any public sale of Collateral state, municipal or of the time after which other governmental agency or authority shall be necessary to effectuate any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold Pledgor shall execute all such applications and other instruments as may be sold required in one lot as an entirety connection with securing any such consent, ruling or in separate parcelsauthorization and, as will otherwise use its best efforts to secure the Bank may (same. Under no circumstances will Lender be obligated to register any securities under the Securities Act of 1933 or any similar qualification or registration law of any state, unless, in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if , it shall determine not elect to do so, regardless of in which case the fact that notice of sale cost of such Collateral registration and qualification shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any become part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiversecured hereby.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Loan and Stock Pledge Agreement (United Panam Financial Corp), Loan and Pledge Agreement (United Panam Financial Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of If an Event of DefaultDefault shall have occurred and is continuing and the Collateral Agent shall have notified the Grantors of its intent to exercise such rights, the Borrowers shall deliver each Grantor agrees to deliver, on demand, each item of Collateral to the Bank Collateral Agent or any Person designated by the Collateral Agent, and it is agreed that the Collateral Agent shall have the right to take any or all of the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent, includingfor the benefit of the Secured Parties, without limitationor to license or sublicense, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performanceperformance but with notice (which need not be prior notice), to take possession of the Article 9 Collateral and the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Pledged Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors no less than 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Second Lien Collateral Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Amc Entertainment Holdings, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of DefaultDefault under and as defined in the Credit Agreement, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law, and subject to the provisions of the Lender Lien Subordination and Intercreditor Agreement, (a) the Collateral Agent may demand that each Grantor deliver each item of Collateral owned or held by it to the Collateral Agent, and each Grantor agrees so to deliver all such Collateral, and (b) the Collateral Agent shall have the right to take any of or all the following actions at the same or different times with respect to any Collateral: (i) with respect to any Collateral consisting of Intellectual Property, on demand, to cause its security interest in such Collateral to become an assignment, transfer and conveyance of any of or all such Collateral by the applicable Grantors to the Collateral Agent, or to grant any license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, with respect to any such Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (ii) with or without legal process and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and to the provisions of the Lender Lien Subordination and Intercreditor Agreement, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall (to the extent permitted by law) hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . In the case of any Collateral that constitutes Article 9 Collateral, the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten applicable Grantors 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower thereforGrantor therefor (to the extent permitted by law). For purposes hereof, (i) a written agreement to purchase the any Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Reaffirmation Agreement (Goodyear Tire & Rubber Co /Oh/)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower the Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrowerthe Grantor, and each Borrower the Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or the Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantor 10 days' written notice (bwhich the Grantor agrees is reasonable notice within the meaning of Section 9-504(3) Unless of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.upon
Appears in 2 contracts
Sources: Credit Agreement (Tel Save Holdings Inc), Security Agreement (Tel Save Holdings Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Pledgor agrees to deliver each item of Pledged Collateral to the Bank Collateral Trustee on demand, and it is agreed that the Bank Collateral Trustee shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, of or all the rights and remedies of a secured party under following actions at the NYUCC same or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, different times: with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Pledged Collateral may be located for the purpose of taking possession of or removing the Pledged Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Trustee shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Trustee shall deem appropriate. The Collateral Trustee shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Trustee shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Pledged Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Trustee shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten Pledgor 10 days’ prior written notice (which Pledgor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession New York UCC or its equivalent in other jurisdictions) of the Collateral Trustee’s intention to make any sale of Pledged Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Pledged Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Trustee may fix and state in the notice (if any) of such sale. At any such sale, the Pledged Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Trustee may (in its sole and absolute discretion) reasonably determine. The Bank Collateral Trustee shall not be obligated to make any sale of any Pledged Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Pledged Collateral shall have been given. The Bank Collateral Trustee may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Pledged Collateral is made on credit or for future delivery, the Pledged Collateral so sold may be retained by the Bank Collateral Trustee until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Trustee shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Pledged Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Pledgor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in fullfullest extent permitted by applicable law. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Trustee may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Pledged Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 3.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Guarantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Pledgors 10 Business Days' written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (TRW Automotive Inc), Guarantee and Collateral Agreement (TRW Automotive Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Trustee on demand, and it is agreed that the Bank Collateral Trustee shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand and, other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC than in violation of any jurisdiction in which law, rule or regulation applicable to such Grantor or any then-existing agreements or licensing arrangements to the extent that waivers cannot be obtained, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedTrustee, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Trustee shall reasonably determine, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Trustee shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Trustee shall deem appropriate. The Collateral Trustee shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Trustee shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Trustee shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten each applicable Grantor 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession New York UCC or its equivalent in other jurisdictions) of the Collateral Trustee’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Trustee may reasonably fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Trustee may (in its sole and absolute discretion) reasonably determine. The Bank Collateral Trustee shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Trustee may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Trustee until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Trustee shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any First-Lien Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), released to the extent permitted by applicable law) the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such First-Lien Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such First-Lien Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in fullfullest extent permitted by applicable law. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Trustee may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable lawjurisdictions. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon Upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure continuance of an Event of Default. Any royalties , no Grantor will, without the Collateral Trustee’s prior written consent, grant any extension of the time of payment of any Accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon; provided that, so long as no Specified Default has occurred and other payments received by is continuing, a Grantor may grant or make extensions, credits, discounts, compromises, compoundings or settlements granted or made in the Bank shall be applied ordinary course of business or in accordance with Section 8. The license set forth such prudent and standard practice used in this Section 7(e) shall terminate without any further action by either party once industries that are the Obligations have been indefeasibly paid same as or similar to those in full in accordance with the Credit Agreementwhich such Grantor is engaged.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (PPL Energy Supply LLC), Guarantee and Collateral Agreement (Dynegy Inc.)
Remedies Upon Default. If any Event of Default shall have occurred and be continuing:
(a) Upon The Collateral Agent may exercise in respect of the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank shall have in any jurisdiction in which enforcement hereof is soughtCollateral, in addition to any other rights and remediesremedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party upon default under the NYUCC Code (whether or not the UCC Code applies to the affected Collateral), and also may (i) take absolute control of any jurisdiction in which the Collateral is locatedCollateral, including, without limitation, transfer into the right, with Collateral Agent's name or without legal process into the name of its nominee or nominees (to the extent permitted by lawthe Collateral Agent has not theretofore done so) and thereafter receive, for the benefit of the Agents and the Lenders, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with or without prior notice or demand for performancerespect thereto as though it were the outright owner thereof, to take possession (ii) require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and without liability for trespass (make it available to the extent permitted Collateral Agent at a place or places to be designated by law) the Collateral Agent that is reasonably convenient to both parties, and the Collateral Agent may enter into and occupy any premises owned or leased by any Grantor where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part thereof is located or assembled for a reasonable period in order to effectuate the Collateral Agent's rights and remedies hereunder or under law, without obligation to any Grantor in respect of such occupation, and (iii) without notice except as specified below and without any obligation to prepare or process the CollateralCollateral for sale, (A) sell the Collateral or any part thereof in one or more parcels at public or private sale or sale, at any brokerof the Collateral Agent's board offices or on any securities exchangeelsewhere, for cash, upon on credit or for future delivery delivery, and at such price or prices and upon such other terms as the Bank shall Collateral Agent may deem appropriatecommercially reasonable and/or (B) lease, license or dispose of the Collateral or any part thereof upon such terms as the Collateral Agent may deem commercially reasonable. Each such purchaser at any such sale shall hold the property sold absolutelyGrantor agrees that, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted notice of sale or any other disposition of the Collateral shall be required by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten (10) days' prior written notice to a Grantor of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition of the Collateral is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales made shall be constitute reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determinenotification. The Bank Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have having been given. The Bank may, without notice or publication, Collateral Agent may adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for saletherefor, and such sale may, without further notice, be made at the time and place to which the same it was so adjourned. In case Each Grantor hereby waives any claims against the Agents and the Lenders arising by reason of the fact that the price at which the Collateral may have been sold at a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree, and waives all rights that such Grantor may have to require that all or any part of the Collateral is made on credit be marshaled upon any sale (public or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also thereof. Each Grantor hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, acknowledges that (i) a written agreement to purchase any such sale of the Collateral or any portion thereof by the Collateral Agent shall be treated as a sale thereofmade without warranty, (ii) the Bank Collateral Agent may specifically disclaim any warranties of title, possession, quiet enjoyment or the like, and (iii) such actions set forth in clauses (i) and (ii) above shall be free to carry out not adversely effect the commercial reasonableness of any such sale pursuant of the Collateral. In addition to the foregoing, (i) upon written notice to any Grantor from the Collateral Agent, each Grantor shall cease any use of the Intellectual Property or any trademark, patent or copyright similar thereto for any purpose described in such agreement notice; (ii) the Collateral Agent may, at any time and from time to time, upon five (5) days' prior notice to any Grantor, license, whether general, special or otherwise, and whether on an exclusive or non- exclusive basis, any of the Intellectual Property, throughout the universe for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; and (iii) the Borrower shall not be entitled Collateral Agent may, at any time, pursuant to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided authority granted in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: 6 hereof (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not such authority being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely effective upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure continuance of an Event of Default. ), execute and deliver on behalf of a Grantor, one or more instruments of assignment of the Intellectual Property (or any application or registration thereof), in form suitable for filing, recording or registration in any country.
(b) Any royalties cash held by the Collateral Agent (or its agents or designee) as Collateral and other payments all Cash Proceeds received by the Bank Collateral Agent in respect of any sale of or collection from, or other realization upon, all or any part of the Collateral shall be applied (after payment of any amounts payable to the Collateral Agent pursuant to Section 8 hereof) in accordance with Section 8. The license set forth whole or in this Section 7(e) shall terminate without part by the Collateral Agent against, all or any further action by either party once part of the Obligations have been indefeasibly paid in such order as the Collateral Agent shall elect, consistent with the provisions of the Financing Agreement. Any surplus of such cash or Cash Proceeds held by the Collateral Agent and remaining the indefeasible payment in full in accordance cash of all of the Obligations and the termination of the Total Commitment, shall be paid over to whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction shall direct.
(c) In the event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which the Agents and the Lenders are legally entitled, the Grantors shall be jointly and severally liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Loan Document for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the Credit Agreementcosts of collection and the reasonable fees, costs, expenses and other client charges of any attorneys employed by the Collateral Agent to collect such deficiency.
(d) Each Grantor hereby acknowledges that if the Collateral Agent complies with any applicable state or federal law requirements in connection with a disposition of the Collateral, such compliance will not adversely affect the commercial reasonableness of any sale or other disposition of the Collateral.
(e) The Collateral Agent shall not be required to marshal any present or future collateral security (including, but not limited to, this Agreement and the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of the Collateral Agent's rights hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that any Grantor lawfully may, such Grantor hereby agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement of the Collateral Agent's rights under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.
Appears in 2 contracts
Sources: Financing Agreement (Xanodyne Pharmaceuticals Inc), Financing Agreement (Xanodyne Pharmaceuticals Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor's right to ▇▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Secured Parties shall give Grantor ten (b10) Unless days' written notice (which Grantor agrees is reasonable notice within the Collateral is perishable or threatens meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties' intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Secured Parties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Secured Parties may (in its their sole and absolute discretion) determine. The Bank Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but the Bank Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Parties from any Borrower Grantor as a credit against the purchase price, and the Bank Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Secured Parties shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Secured Parties shall have entered into such an agreement all Events of Default shall Obligations have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Secured Parties may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Security Agreement (Wave Wireless Corp), Security Agreement (Dirt Motor Sports, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of its Collateral to the Bank Secured Parties on demand, and it is agreed that the Bank Secured Parties shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times (but at all times subject to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, Existing Liens): with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (Collateral, exercise Grantor's right to ▇▇▇▇ and receive payment for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) completed work and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determine. The Bank shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Note and Warrant Purchase Agreement (Remote Dynamics Inc), Note and Warrant Purchase Agreement (Remote Dynamics Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightuniverse on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantors 10 days' written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-504(3) Unless of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Shared Technologies Inc), Security Agreement (Shared Technologies Inc)
Remedies Upon Default. Subject to the terms of the Intercreditor Agreement:
(a) Upon upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Obligor agrees to deliver each item of Collateral to the Bank Collateral Agent, for the ratable benefit of the Secured Parties, (or the Revolver Collateral Agent as gratuitous bailee under the Intercreditor Agreement) on demand, and it is agreed that the Bank Collateral Agent, on behalf of the Secured Parties, shall have the right to take any of or all the following actions at the same or different times (in any jurisdiction in which enforcement hereof is soughteach case, in addition acting at the written direction of the Administrative Agent): (i) with respect to any other rights and remediesArticle 9 Collateral consisting of Intellectual Property, on demand, the rights Collateral Agent may cause the Security Interest to become an assignment, transfer and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent for the ratable benefit of the Secured Parties, includingand the Collateral Agent may also license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained and subject to the provisos set forth in Section 5.03); (ii) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to the Collateral Agent may take possession of the Article 9 Collateral and and, without liability for trespass (to trespass, the extent permitted by law) to Collateral Agent may, enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law; (iii) automatically (without any request or notice being delivered by the Collateral Agent or any other Person) upon the occurrence and during the continuance of an Event of Default pursuant to Sections 7.01(b), (c), (f), (h) or (i) of the Credit Agreement, and upon the occurrence and during the continuance of any other Event of Default, after written notice by the Collateral Agent to the Borrower, all rights of any Grantor to all cash, checks, drafts and other instruments or writings for the payment of money constituting proceeds of Article 9 Collateral shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such cash, checks, drafts and other instruments or writings for the payment of money constituting proceeds of Article 9 Collateral. Automatically (without any request or notice being delivered by the Collateral Agent or any other Person) upon the occurrence and during the continuance of an Event of Default pursuant to Sections 7.01(b), (c), (f), (h) or (i) of the Credit Agreement, and upon the occurrence and during the continuance of any other Event of Default, after written notice by the Collateral Agent to the Borrower, all cash, checks, drafts and other instruments or writings for the payment of money constituting proceeds of Article 9 Collateral received by any Grantor contrary to the provisions of Section 5.01(a)(iii) shall not be commingled by such Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Collateral Agent (or the Revolver Collateral Agent as gratuitous bailee under the Intercreditor Agreement), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Collateral Agent); provided, that (x) the failure of the Collateral Agent to give the notice referred to in this sentence shall have no effect on the rights of the Collateral Agent hereunder, and (y) the Collateral Agent shall not be required to deliver any such notice if such delivery would be prohibited by applicable law. Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of Section 5.01(a)(iii) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived and the Borrower has delivered to the Collateral Agent a certificate to that effect, the Collateral Agent shall promptly repay to each Grantor (without interest) all cash, checks, drafts and other instruments or writings for the payment of money constituting proceeds of Article 9 Collateral that such Grantor would otherwise be permitted to retain pursuant to the terms of this Agreement and that remain in such account.
(b) After the occurrence of an Event of Default and during the continuance thereof, the Collateral Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any third Person, by contacting Account Debtors or the third Person possessing such Article 9 Collateral for the purpose of making such a verification. The Collateral Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party.
(c) Without limiting the generality of the foregoing, each Borrower Obligor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, upon the occurrence and during the continuance of an Event of Default, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to Persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerObligor, and each Borrower Obligor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Obligor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted; and
(d) The Collateral Agent may also exercise any other remedy available at law or equity.
(be) Unless The Collateral Agent shall give the applicable Obligors 10 Business Days’ written notice (which each Obligor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent, for the ratable benefit of the Secured Parties, until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Obligor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may (subject to the Collateral Agent’s consent) make payment on account thereof by using any claim then due and payable pursuant to the Bank Loan Documents to such Secured Party from any Borrower Obligor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Obligor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Obligor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. Each Obligor shall remain liable for any deficiency if the UCC proceeds of any sale or other jurisdiction in which disposition of the Collateral is located are insufficient to pay the Secured Obligations and the reasonable fees and disbursements of any external attorneys employed by the Collateral Agent or any other requirement of applicable lawSecured Party to collect such deficiency. Without limiting the foregoing, Notwithstanding any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being provision set forth in this Section 7.
(e) For 5.01, the purpose of enabling Collateral Agent shall only act or exercise any right hereunder upon the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any prior written direction of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in Administrative Agent (with such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely direction being deemed given upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license Borrower providing notice or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied a certificate in accordance with Section 8. The license 3.07, 5.01(b) or Section 7.14(e), in each case for the purposes set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsuch Sections).
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Summit Midstream Partners, LP), Guarantee and Collateral Agreement (Summit Midstream Partners, LP)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may shall be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Hawaiian Telcom Communications, Inc.), Guarantee and Collateral Agreement (Hawaiian Telcom Communications, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Administrative Agent on demand, and it is agreed that the Bank Administrative Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Collateral is located, including, without limitation, Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the right, extent that waivers cannot be obtained); and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale of Collateral the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Administrative Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Administrative Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Administrative Agent may (in its sole and absolute discretion) determine. The Bank Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Administrative Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Administrative Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Guarantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Pledgors 10 Business Days' written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Nalco Energy Services Equatorial Guinea LLC), Guarantee and Collateral Agreement (Foundation Coal Holdings, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Grantor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under the UCC applicable Uniform Commercial Code or other applicable lawlaw or in equity. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . To the extent any notice is required by applicable law, the Collateral Agent shall give the applicable Grantors 10 Business Days’ written notice (which each Grantor agrees is perishable reasonable notice within the meaning of Section 9-611 of the New York UCC or threatens its equivalent in other jurisdictions) of the intention of the Collateral Agent to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Collateral Agreement (Anywhere Real Estate Group LLC), Collateral Agreement (Realogy Holdings Corp.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, of or all the rights and remedies of a secured party under following actions at the NYUCC same or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, different times: with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower the Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrowerthe Grantor, and each Borrower the Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or the Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantor 10 days’ written notice (bwhich the Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower the Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Secured Party from any Borrower the Grantor as a credit against the purchase price, and the Bank Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower the Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Loan Proceeds Note Collateral Agreement, Loan Proceeds Note and Collateral Agreement (Level 3 Communications Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall reasonably determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Clearlake Capital Partners, LLC), Guarantee and Collateral Agreement (TRM Corp)
Remedies Upon Default. (a) Upon Subject to the terms of the Intercreditor Agreements, upon the occurrence and solely during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Junior-Priority Collateral Agent on demand, and it is agreed that the Bank Junior-Priority Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, upon the direction of the applicable Authorized Representative in accordance with the terms of the Junior-Priority Lien Pari Passu Intercreditor Agreement (provided that if the Junior-Priority Collateral Agent has requested instruction from the applicable Authorized Representative and such Authorized Representative has not responded to such request, the Junior-Priority Collateral Agent will not be required to take, and will not have any liability for the failure to take, any actions with regard to a default or event), to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Grantor to the Junior-Priority Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Junior-Priority Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law and (c) with respect to all Capital Stock included in the Collateral, to the extent permitted by law, to exercise voting and other consensual rights and powers. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Junior-Priority Collateral Agent shall have the right, subject to the mandatory requirements of the Intercreditor Agreements and of applicable law, including any applicable healthcare laws, and upon the direction of the applicable Authorized Representative in accordance with the terms of the Junior-Priority Lien Pari Passu Intercreditor Agreement, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Junior-Priority Collateral Agent shall deem appropriate. The Junior-Priority Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Junior-Priority Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Junior-Priority Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Junior-Priority Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Junior-Priority Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Junior-Priority Collateral Agent may (in its sole and absolute discretion) determine. The Bank Junior-Priority Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Junior-Priority Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Junior-Priority Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Junior-Priority Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Junior-Priority Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Junior-Priority Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Junior-Priority Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Junior-Priority Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any . To the fullest extent permitted under applicable law, any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Junior Priority Collateral Agreement (Community Health Systems Inc), Junior Priority Collateral Agreement (Community Health Systems Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times to the extent permitted by applicable law: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantor to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, right to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give each applicable Grantor 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, or private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement agreement, and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral under this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Rentech Inc /Co/), Guarantee and Collateral Agreement (Rentech Inc /Co/)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained and subject to the provisos set forth in Section 5.03) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, upon the occurrence and during the continuance of an Event of Default, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to Persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors at least 10 Business Days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may (subject to the Collateral Agent’s consent) make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. Each Grantor shall remain liable for any deficiency if the UCC proceeds of any sale or other jurisdiction in which disposition of the Collateral is located are insufficient to pay the Secured Obligations and the reasonable fees and disbursements of any external attorneys employed by the Collateral Agent or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, Secured Party to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7collect such deficiency.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Remedies Upon Default. (a) Upon After the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent (or, to the extent delivery of such Collateral would be commercially impracticable, make such Collateral available), and it is agreed that the Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of applicable law or any then existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and but with or without prior notice or demand for performance, to take possession of the Collateral and so long as there is not a breach of peace, without liability except for trespass (to the extent permitted by law) its gross negligence or willful misconduct, to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. Each The Collateral Agent shall be authorized at any such sale to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right, subject to compliance with applicable federal and state securities laws, to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Subject to any mandatory provision of applicable law, each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least a Grantor not less than ten days' (10) Business Days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC) of the Collateral Agent’s intention to make any sale or other disposition of such Grantor’s Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 6.01, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released, to the maximum extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim Secured Obligation then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding any cure of any Event of Default or any repayment of the fact that after Obligations following the Bank shall have entered entry into such an agreement all Events of Default shall have been remedied and the Obligations paid in fullagreement. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any . Each Grantor acknowledges that any sale conducted in accordance with pursuant to the provisions of this Section 7 6.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 611 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7UCC.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Security Agreement (NXT-Id, Inc.), Security Agreement (NXT-Id, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each item of Collateral to the Bank on demand, Default (and the Bank shall have in expiration of any jurisdiction in which enforcement hereof is soughtcure period related thereto), Administrative Agent may, in addition to the exercise by Administrative Agent of its rights and remedies under any other Section of this Agreement or under the Credit Agreement or any other agreement relating to the Obligations or otherwise available to it at law or in equity:
(a) declare the principal of and all accrued interest on and any other amounts owing with respect to the Obligations immediately due and payable, without demand, protest, notice of default or other notices of any kind, except that Borrower and Pledgor shall be provided notice of acceleration or of intention to accelerate, provided, however, that failure to provide such notice to Borrower and Pledgor shall in no way affect the rights and remediesof the Lenders, and
(b) exercise all the rights and remedies of a secured party under the NYUCC or Uniform Commercial Code in effect in the UCC State of any jurisdiction North Carolina at that time and sell (in which compliance with applicable laws, including securities laws) the Collateral is locatedCollateral, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower agrees that the Bank shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateralthereof, at public or private sale or sale, at any broker's board or on ’s board, upon any securities exchange, or elsewhere, for cash, upon credit credit, or for future delivery delivery, as Administrative Agent may deem appropriate in the Bank circumstances and commercially reasonable. Administrative Agent shall have the right to impose limitations and restrictions on the sale of the Collateral as Administrative Agent may deem appropriateto be necessary or appropriate to comply with any law, rule, or regulation (Federal, state, or local) having applicability to the sale, including, but without limitation, restrictions on the number and qualifications of the offerees and requirements for any necessary governmental approvals, and Administrative Agent shall be authorized at any such sale (if it deems it necessary or advisable to do so) to restrict the prospective offerees or purchasers to Persons who will represent and agree that they are purchasing securities included in the Collateral for their own account and not with a view to the distribution or sale thereof in violation of applicable securities laws and Pledgor hereby waives, to the maximum extent permitted by law, any claim arising because the price at which the Collateral may have been sold at such private sale was less than the price that might have been obtained at public sale, even if Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Upon consummation of any such sale, Administrative Agent shall have the right to assign, transfer, and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and and/or appraisal which such Borrower or that Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless . To the Collateral is perishable or threatens extent that notice of sale shall be required to decline speedily in value or is of a type customarily sold on a recognized marketbe given by law, the Bank Administrative Agent shall give to the Borrowers Pledgor at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten (10) days’ prior written notice of its intention to make any such sale public or sales private sale. Such notice shall state the time and place fixed for sale, and the Collateral, or portion thereof, to be reasonable noticeoffered for sale. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as Administrative Agent may determine, and Administrative Agent may itself bid (which bid may be in whole or in part in the Bank may (in its sole form of cancellation of the Obligations) for and absolute discretion) determinepurchase the whole or any part of the Collateral. The Bank Administrative Agent shall not be obligated to make any sale of any the Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such the Collateral shall may have been given. The Bank Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made to any Person other than the Administrative Agent or any Lender on credit or for future delivery, the Collateral so sold may be retained by the Bank Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank . Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At Pledgor hereby agrees that any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank may bid for or purchase, free from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower shall not be entitled to the return disposition of the Collateral conducted in conformity with reasonable commercial practices of banks, insurance companies or any portion thereof subject thereto, notwithstanding other financial institutions in the fact that after the Bank shall have entered into such an agreement all Events city and state where Administrative Agent is located in disposing of Default shall have been remedied and the Obligations paid in full. As an alternative property similar to exercising the power of sale herein conferred upon it, the Bank may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform be commercially reasonable.
(c) Pledgor recognizes that the Administrative Agent and Secured Parties may be unable to commercially reasonable standards as provided in Section 9-610 effect a public sale of all or part of the NYUCC Collateral by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws but may be compelled to resort to one or the UCC more private sales to a restricted group of any purchasers who will be obligated to agree, among other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges thatthings, to acquire all or a part of the extent Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Pledgor acknowledges and agrees that applicable law imposes duties any private sale so made may be at prices and on other terms less favorable to the Bank seller than if such Collateral were sold at public sale and that the Administrative Agent has no obligation to exercise remedies delay the sale of such Collateral for the period of time necessary to permit the registration of such Collateral for public sale under any securities laws. Pledgor agrees that a private sale or sales made under the foregoing circumstances shall not be deemed to have not been made in a commercially reasonable mannermanner solely as a result of being a private sale. If any consent, it shall be commercially reasonable for the Bank to do approval, or authorization of any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods federal, state, municipal, or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed ofgovernmental department, agency, or authority should be necessary to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors effectuate any sale or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion disposition of the Collateral, (vii) hire one or more professional auctioneers to assist in the any partial sale or other disposition of the Collateral, whether Pledgor will execute all applications and other instruments as may be required in connection with securing any such consent, approval, or not authorization and will otherwise use its best efforts to secure the same. In addition, if the Collateral is disposed of pursuant to Rule 144, Pledgor agrees to complete and execute a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing soForm 144, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercisedcomparable successor form, at the option Administrative Agent’s written request; and Pledgor agrees to provide any material adverse information in regard to the current and prospective operations of the Bankeach Pledged Entity of which Pledgor has knowledge and which has not been publicly disclosed, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided Pledgor hereby acknowledge that any license, sub-license or other transaction entered into by the Bank Pledgor’s failure to provide such information may result in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreementcriminal and/or civil liability.
Appears in 2 contracts
Sources: Equity Pledge Agreement (Triangle Capital CORP), Equity Pledge Agreement (Triangle Capital CORP)
Remedies Upon Default. (a) Upon Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under right (but not the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by lawduty) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party with respect to the Secured Obligations under the UCC Uniform Commercial Code (including the New York UCC) in any applicable jurisdiction or other applicable law. Without limiting the generality law and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) subject to the mandatory requirements of applicable lawLaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriateappropriate and (v) cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Collateral by the applicable Grantors to the Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained). Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and, subject to the terms of the Intercreditor Agreement, upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by lawLaw) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that applicable Grantors ten days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance Section 9-611 of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to exercise its rights with respect thereto.
(c) be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(ec) For the purpose of enabling the Bank to exercise rights Each Grantor irrevocably makes, constitutes and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of appoints the Collateral consisting of Intellectual Property now owned Agent (and all officers, employees or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license agents designated by the Bank may be exercised, at the option of the Bank, solely upon the occurrence Collateral Agent) as such Grantor’s true and lawful agent (and attorney-in-fact) during the continuation continuance of an Event of Default and after notice to the Obligations having become due Issuer of its intent to exercise such rights, for the purpose of (i) making, settling and payable; provided that adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any licensecheck, sub-license draft, instrument or other transaction entered into item of payment for the proceeds of such policies of insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by the Bank Covered Documents or paying any premium in accordance herewith whole or in part relating thereto. All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be binding upon the Borrowers notwithstanding any subsequent cure payable, within ten days of an Event of Default. Any royalties and other payments received demand, by the Bank Grantors to the Collateral Agent and shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the additional Secured Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsecured hereby.
Appears in 2 contracts
Sources: Second Lien Security Agreement, Second Lien Security Agreement (Heinz H J Co)
Remedies Upon Default. (a) Upon Subject to the terms of the Intercreditor Agreements, upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent, on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent (on behalf of the Secured Parties) or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Grantor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 6.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 Business Days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 6.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 6.02 hereof without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral under this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 6.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Collateral Agreement (Berry Plastics Corp), Collateral Agreement (Kerr Group Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Grantor agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-504(3) Unless of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 6.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 504(3) of the NYUCC or the UCC of any other jurisdiction Uniform Commercial Code as in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not effect in the same business as the Borrowers, for expressions State of interest New York or its equivalent in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Security Agreement (Advance Auto Parts Inc), Security Agreement (Advance Auto Parts Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, right to exercise any and all rights afforded to a secured party with respect to the Secured Obligations, as applicable, under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality , and also may (i) require each Grantor to, and each Grantor agrees that it will at its expense and upon request of the foregoingCollateral Agent forthwith, each Borrower agrees assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place and time to be designated by the Collateral Agent that is reasonably convenient to both parties; (ii) occupy any premises owned or, to the extent lawful and permitted, leased by any of the Grantors where the Collateral or any part thereof is assembled or located for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to such Grantor in respect of such occupation; provided that the Bank Collateral Agent shall have provide the rightapplicable Grantor with notice thereof prior to or promptly after such occupancy; (iii) exercise any and all rights and remedies of any of the Grantors under or in connection with the Collateral, or otherwise in respect of the Collateral; provided that the Collateral Agent shall provide the applicable Grantor with notice thereof prior to or promptly after such exercise; (iv) withdraw any and all cash or other Collateral from the Cash Collateral Account and to apply such cash and other Collateral to the payment of any and all Secured Obligations in the manner provided in Section 5.02 of this Agreement; (v) subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral securing the Secured Obligations at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate; and (vi) with respect to any Intellectual Property Collateral, on demand, cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Intellectual Property Collateral by the applicable Grantors to the Collateral Agent, or license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Intellectual Property Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine, provided, however, that such terms shall include all terms and restrictions that customarily required to ensure the continuing validity and effectiveness of the Intellectual Property at issue, such as, without limitation, quality control and inure provisions with regard to Trademarks, patent designation provisions with regard to patents, and copyright notices and restrictions or decompilation and reverse engineering of copyrighted software. The Collateral Agent shall be authorized at any sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers of such securities to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the applicable Grantors 10 days’ written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Agent’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in fullfull (in which case the applicable Grantors shall be entitled to the proceeds of any such sale pursuant to Section 5.02 hereof). As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or its equivalent in other jurisdictions. Each Grantor irrevocably makes, constitutes and appoints the UCC of any other jurisdiction in which Collateral is located Agent (and all officers, employees or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant agents designated by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; Agent) as such Grantor’s true and lawful agent (iiand attorney-in-fact) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation continuance of an Event of Default and after notice to the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by Borrower of its intent to exercise such rights (except in the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure case of an a Bankruptcy Event of Default, in which case no such notice shall be required), for the purpose of (i) making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies if insurance, (ii) making all determinations and decisions with respect thereto and (iii) obtaining or maintaining the policies of insurance required by Section 6.07 of the Credit Agreement or to pay any premium in whole or in part relating thereto. Any royalties All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other payments received charges relating thereto, shall be payable, within 10 days of demand, by the Bank Grantors to the Collateral Agent and shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the additional Secured Obligations have been indefeasibly paid in full in accordance with the Credit Agreementsecured hereby.
Appears in 2 contracts
Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Osi Restaurant Partners, LLC)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, subject to applicable Requirements of Law, each of the Borrowers shall Pledgors and Grantors agrees to deliver each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have the right to take any of or all of the rights and remedies provided for in any jurisdiction in which enforcement hereof is sought, in addition to this Agreement or any other rights and remediesCredit Document, the rights and remedies of a secured party under the NYUCC or Texas UCC, and any and all of the UCC rights and remedies at law and equity, all of which shall be deemed cumulative, including but not limited to the following: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any jurisdiction in which of or all such Article 9 Collateral by the applicable Grantors to the Collateral is locatedAgent or to license or sublicense, includingwhether general, without limitationspecial or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the right, world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Grantor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower of the Pledgors and Grantors agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 4.01, the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor or any Grantor, and each Borrower of the Pledgors and Grantors hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower Pledgor or Grantor, as applicable, now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten applicable Pledgors and applicable Grantors 10 days' prior ’ written notice (which each of the time Pledgors and place Grantors agrees is reasonable notice within the meaning of any public sale of Collateral or Section 9-611 of the time after which any private sale Texas UCC or any its equivalent in other intended disposition is to be made. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession jurisdictions) of the Collateral and Agent’s intention to exercise its rights with respect thereto.
(c) Any such public make any sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such saleCollateral. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 4.01, the Bank any Secured Party may bid for or purchasepurchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor or any Grantor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank from any Borrower as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Pledgor or any Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor and no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) Any sale conducted . To the extent provided in accordance with the provisions of this Section 7 4.01, any sale that complies with such provisions shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC Texas UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Mach Natural Resources Lp), Credit Agreement (Mach Natural Resources Lp)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Borrowers shall deliver each item of Collateral to the Bank on demand, and the Bank Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to any all other rights and remedies, the rights and remedies of a secured party under the NYUCC UCC or other applicable Law. In addition, upon the UCC occurrence and during the continuance of any jurisdiction in which an Event of Default, the rights and remedies of the Collateral is located, includingAgent shall include, without limitation, the rightright to take any or all of the following actions at the same or different times:
(a) With respect to any Collateral consisting of Accounts, General Intangibles (including Payment Intangibles), Letter-of-Credit Rights, Instruments, Chattel Paper, Documents, and Investment Property, the Collateral Agent may collect the Collateral with or without the taking of possession of any of the Collateral.
(b) With respect to any Collateral consisting of Accounts, the Collateral Agent may: (i) demand, collect and receive any amounts relating thereto, as the Collateral Agent may determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Collateral Agent may reasonably deem appropriate; (iv) without limiting the Collateral Agent’s rights set forth in SECTION 5.01 hereof, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Collateral Agent was the absolute owner thereof for all purposes.
(c) With respect to any Collateral consisting of Investment Property, the Collateral Agent may: (i) exercise all rights of any Grantor with respect thereto, including without limitation, the right to exercise all voting and corporate rights at any meeting of the shareholders of the Issuer of any Investment Property and to exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any Investment Property as if the Collateral Agent was the absolute owner thereof, including the right to exchange, at its discretion, any and all of any Investment Property upon the merger, consolidation, reorganization, recapitalization or other readjustment of the Issuer thereof, all without liability except to account for property actually received as provided in SECTION 5.02 hereof; (ii) transfer such Collateral at any time to itself, or to its nominee, and receive the income thereon and hold the same as Collateral hereunder or apply it to the Secured Obligations; and (iii) demand, ▇▇▇ for, collect or make any compromise or settlement it deems desirable. The Grantors recognize that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Investment Property by reason of certain prohibitions contained in the Securities Act of 1933, 15 ▇.▇.▇. §▇▇ (as amended and in effect, the “Securities Act”) or the Securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Investment Property for their own account, for investment and not with a view to the distribution or resale thereof, (b) that private sales so made may be at prices and upon other terms less favorable to the seller than if the Investment Property were sold at public sales, (c) that neither the Collateral Agent nor any other Credit Party has any obligation to delay sale of any of the Investment Property for the period of time necessary to permit the Investment Property to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. Notwithstanding anything herein to the contrary, no Grantor shall be required to register, or cause the registration of, any Investment Property under the Securities Act or any Blue Sky Laws.
(d) With respect to any Collateral consisting of Inventory, Goods, and Equipment, the Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.
(e) With respect to any Collateral consisting of Securities Accounts, Commodity Accounts or Deposit Accounts that are subject to a control agreement, the Collateral Agent may exercise any rights thereunder with respect to such Collateral.
(f) With or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, the Collateral Agent may enter upon, occupy, and use any premises owned or occupied by each Grantor and may exclude the Grantors from such premises or portion thereof as may have been so entered upon, occupied, or used by the Collateral Agent. The Collateral Agent shall not be required to take possession remove any of the Collateral from any such premises upon the Collateral Agent’s taking possession thereof and without liability for trespass (may render any Collateral unusable to the extent permitted Grantors. In no event shall the Collateral Agent be liable to any Grantor for use or occupancy by law) to enter the Collateral Agent of any premises where pursuant to this SECTION 6.01, nor for any charge (such as wages for the Grantors’ employees and utilities) incurred in connection with the Collateral may be located for the purpose Agent’s exercise of taking possession of or removing the Collateral Agent’s Rights and Remedies (and as defined herein) hereunder, other than for that purpose direct or actual damages resulting from the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which gross negligence or willful misconduct of the Collateral Agent as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(g) The Collateral Agent may be situated and remove notify any obligors on the Collateral therefromthat the Collateral has been assigned to the Collateral Agent and that all payments thereon, or performance with respect thereto, are to be made directly and exclusively to the Collateral Agent.
(h) and, generally, The Collateral Agent may require any Grantor to exercise assemble the Collateral and make it available to the Collateral Agent at such Grantor’s sole risk and expense at a place or places which are reasonably convenient to both the Collateral Agent and such Grantor.
(i) The Collateral Agent may require any Grantor to name the Collateral Agent as consignee on any Documents and all rights afforded to a secured party under furnish the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Collateral Agent with control over any such Documents.
(j) Each Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawLaw, to sell sell, assign or lease or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchangesale, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Borrower, and each Borrower hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which such Borrower or now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedGrantor.
(bk) Unless the The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers Grantors at least ten (10) days' ’ prior written notice notice, by authenticated record, of the date, time and place of any proposed public sale of Collateral or sale, and of the time date after which any private sale or any other intended disposition is to of the Collateral may be made. Each Borrower hereby acknowledges Grantor agrees that ten days’ prior such written notice of such sale or sales shall constitute reasonable notification and shall be reasonable notice. Each Borrower hereby waives any and deemed to satisfy all rights that it may have requirements for notice to a judicial hearing in advance such Grantor which are imposed under the UCC or other applicable Law with respect to the exercise of the enforcement Collateral Agent’s Rights and Remedies upon the occurrence and during the continuance of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank may (in its sole and absolute discretion) determineDefault. The Bank Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned.
(l) Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice of such sale. In case At any sale of all or other disposition, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. If any part of the Collateral is made sold, leased, or otherwise disposed of by the Collateral Agent on credit or credit, the Secured Obligations shall not be deemed to have been reduced as a result thereof unless and until payment in full is received thereon by the Collateral Agent. In the event that the purchaser fails to pay for future deliverythe Collateral, the Collateral so sold Agent may be retained by the Bank until the sale price is paid by the purchaser or purchasers thereof, but the Bank shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for resell the Collateral so sold and, and apply the proceeds from such resale in case accordance with the terms of any such failure, such Collateral may be sold again upon like notice. SECTION 6.02 of this Agreement.
(m) At any public (or, to the extent permitted by applicable lawLaw, private) sale made pursuant to this SectionSECTION 6.01, the Bank Collateral Agent or any other Credit Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower (all said rights being also hereby waived and released)Grantor, the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank Collateral Agent or such other Credit Party from any Borrower Grantor on account of the Secured Obligations as a credit against the purchase price, and the Bank Collateral Agent or such other Credit Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. .
(n) For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) the Bank . The Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. .
(o) As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(dp) Any sale conducted To the extent permitted by applicable Law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in accordance with the provisions future have under any rule of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of law or statute now existing or hereafter enacted, and all claims, damages and demands it may acquire against the NYUCC or the UCC of any other jurisdiction in which Collateral is located Agent or any other requirement Credit Party arising out of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank Collateral Agent or such Credit Party of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7any rights hereunder.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to deliver, on demand, each item of Collateral to the Bank Term Collateral Agent or any Person designated by the Term Collateral Agent, and it is agreed that the Term Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and the Bank shall have in any jurisdiction in which enforcement hereof is sought, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Grantors to the Term Collateral Agent, for the benefit of the Secured Parties, or to license or sublicense, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in which such manner as the Term Collateral is locatedAgent shall determine (other than in violation of any of the then existing licensing arrangements to the extent that waivers cannot be obtained) in connection with exercise of its remedies hereunder, including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (the Pledged Collateral and occupy any premises owned or, to the extent permitted lawful and permitted, leased by law) to enter any premises of the Grantors where the Collateral may be or any part thereof is assembled or located for the purpose of taking possession of a reasonable period in order to effectuate its rights and remedies hereunder or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Term Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Term Collateral Agent shall deem appropriate. The Term Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Term Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The Term Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten applicable Grantors no less than 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Term Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or sales on a securities exchange, shall state the board or exchange at which such sale is to be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Term Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Term Collateral Agent may (in its sole and absolute discretion) determine. The Bank Term Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Term Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Term Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Term Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Term Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Term Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Term Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to commercially reasonable the commercial reasonableness standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Term Collateral Agreement (Installed Building Products, Inc.), Term Collateral Agreement (Builders FirstSource, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to deliver, on demand, each item of Collateral to the Bank First Lien Collateral Agent or any Person designated by the First Lien Collateral Agent, and it is agreed that the First Lien Collateral Agent shall have the right subject to Applicable Nuclear Laws to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the Bank applicable Grantors to the First Lien Collateral Agent, for the benefit of the Secured Parties, or to license, whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the First Lien Collateral Agent shall have determine (other than in violation of any then-existing licensing arrangements or other agreement to the extent that waivers cannot be obtained), but in any jurisdiction event, on a revocable basis under terms whereby such license should terminate immediately upon cure of an Event of Default in which enforcement hereof is soughtconnection with exercise of its remedies hereunder, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which the Collateral is located, including, without limitation, the right, (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and the Pledged Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Article 9 Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Pledged Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank First Lien Collateral Agent shall have the right, subject to the mandatory requirements of applicable lawlaw and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank First Lien Collateral Agent shall deem appropriate. The First Lien Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the First Lien Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale of Collateral shall hold the property sold absolutely, absolutely free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which that such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the . The First Lien Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least ten days' prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Each Borrower hereby acknowledges that ten applicable Grantors no less than 10 days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the First Lien Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or sales on a securities exchange, shall state the board or exchange at which such sale is to be reasonable notice. Each Borrower hereby waives any made and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of day on which the Collateral and to exercise its rights with respect thereto.
(c) or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank First Lien Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank First Lien Collateral Agent may (in its sole and absolute discretion) determine. The Bank First Lien Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank First Lien Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank First Lien Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank First Lien Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionAgreement, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank First Lien Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank First Lien Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Secured Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank First Lien Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 4.01 shall be deemed to conform to commercially reasonable the commercial reasonableness standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: First Lien Collateral Agreement (Sotera Health Co), First Lien Collateral Agreement (Sotera Health Topco, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees that the Borrowers Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) in the case of any Copyright, Patent or Trademark constituting Collateral of such Grantor, execute and deliver each item any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent's and the other Secured Parties' security interest in such Copyright, Patent or Trademark and the goodwill and general intangibles of such Grantor relating thereto or represented thereby and, subject to any existing reserved rights or licenses, assign any Copyright, Patent or Trademark constituting Collateral of such Grantor (along with the goodwill of the business to the Bank which any such Copyright, Patent or Trademark pertains), for such term or terms, on demandsuch conditions, and the Bank shall have in any jurisdiction in which enforcement hereof is soughtsuch manner, in addition to any other rights and remedies, the rights and remedies of a secured party under the NYUCC or the UCC of any jurisdiction in which as the Collateral is locatedAgent shall in its sole discretion determine, including, without limitation, the right, and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the such Grantor's Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the such Grantor's Collateral may be located for the purpose of taking possession of or removing the such Grantor's Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the such Grantor's Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall reasonably deem appropriate. The Collateral Agent shall be authorized at any such sale of any Grantor's Collateral subject to restrictions on sales under the Securities Act of 1933, as amended (if it reasonably deems it advisable to do so), to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing such Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Collateral Agent shall give the Grantors at least 10 days' written notice (bwhich each Grantor agrees is reasonable notice within the meaning of Section 9-504(3) Unless of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral is perishable or threatens Agent's intention to decline speedily make any sale of such Grantor's Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) discretion determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall reasonably determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and releasedreleased to the extent permitted by law), the such Grantor's Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower such Grantor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower such Grantor therefor. For purposes hereof, (i) a written agreement with any Person (other than a Secured Party or affiliate thereof) to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the such Grantor's Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-court- appointed receiver.
(d) Any sale conducted in accordance with the provisions of this Section 7 shall be deemed to conform to commercially reasonable standards as provided in Section 9-610 of the NYUCC or the UCC of any other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Security Agreement (Jafra Cosmetics International Sa De Cv), Credit Agreement (Jafra Cosmetics International Sa De Cv)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall deliver each Grantor agrees to make available each item of Collateral to the Bank Collateral Agent on demand, and it is agreed that the Bank Collateral Agent shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (i) with respect to any other rights Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction in which of or all such Collateral by the applicable Grantors to the Collateral is locatedAgent, includingor to license or sublicense, without limitationwhether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the rightworld on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of applicable law or any then existing licensing arrangements to the extent that waivers cannot be obtained), and (ii) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass (to the extent permitted by law) to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party Secured Party under the UCC or other applicable law. Without limiting the generality of the foregoing, each Borrower Grantor agrees that the Bank Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerGrantor, and each Borrower Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay, valuation stay and appraisal which such Borrower or Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(b) Unless the The Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Bank Agent shall give to the Borrowers at least a Grantor ten days' prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the UCC) of the Collateral Agent's intention to make any sale or other disposition of such Grantor's Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of any public a sale of Collateral at a broker's board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Collateral Agent may (in its sole and absolute discretion) determine. The Bank Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Bank Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Grantor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim Obligation of such Grantor then due and payable to the Bank from any Borrower such Secured Party as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Borrower Grantor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Collateral Agent shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 611 of the NYUCC UCC.
(c) Notwithstanding anything to the contrary in this Agreement, any foreclosure on, sale, transfer or other disposition of, or the UCC exercise or relinquishment of any other jurisdiction right to vote or consent with respect to, any of the Collateral by the Collateral Agent shall, to the extent required, be in which Collateral is located conformance with Sections 214 and 310(d) of the Communications Act of 1934, as amended, and the applicable rules and regulations thereunder, and, if and only to the extent required thereby, subject to the prior approval or notice to and non-opposition of the FCC or any other requirement PUC.
(d) If an Event of applicable law. Without limiting Default shall have occurred and be continuing, each Grantor shall take any action which the Collateral Agent may reasonably request in order to transfer or assign, or both, to the Collateral Agent, or to such one or more third parties as the Collateral Agent may designate, or to a combination of the foregoing, any Borrower agrees and acknowledges thatFCC or PUC license, permit, certificate or other authorization (each a "Permit") held or utilized by such Grantor or its Subsidiaries, subject to the prior approval of the FCC or any PUC, if required. The Collateral Agent is empowered, to the extent that permitted by applicable law imposes duties on Requirements of Law, to request the Bank appointment of a receiver from any court of competent jurisdiction. Such receiver may be instructed by Secured Party to exercise remedies in a commercially reasonable mannerseek from the FCC or any PUC consent to an involuntary transfer of control of the Grantors or assignment, it shall be commercially reasonable or both, of each such FCC or PUC Permit for the Bank purpose of seeking a bona fide purchaser to do any whom control of assets used in the provision of telecommunications or all related services will ultimately be transferred or assigned. Each Grantor hereby agrees to authorize such an involuntary transfer of control or assignment, or both, upon the request of the following: (i) fail receiver so appointed and, if any Grantor shall refuse to incur expenses deemed significant authorize the transfer, its approval may be required by the Bank court. Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees to prepare Collateral use its best efforts to assist in obtaining approval of the FCC or any PUC and any other state regulatory bodies, if required, for disposition any action or otherwise transactions contemplated by this Agreement, including, without limitation, the preparation, execution and filing with the FCC or any PUC and any other state regulatory bodies of the assignor's or transferor's portion of any application or applications for consent to complete raw materials the assignment of any FCC or work in process into finished goods PUC license, permit, certificate or other finished products for disposition; (ii) fail authorization or right to obtain third-party consents for access to Collateral to be disposed ofuse any FCC or PUC license, or to obtain orpermit, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors certificate or other persons obligated on Collateral authorization or to remove Liens on transfer of control necessary or appropriate under the rules and regulations of the FCC or PUC or any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly state regulatory body for approval or through non-opposition of the use transfer or assignment of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one together with any FCC or more professional auctioneers to assist in the disposition of CollateralPUC license, whether permit, certificate or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7authorization.
(e) For Each Grantor acknowledges that the purpose assignment or transfer of enabling the Bank to exercise rights and remedies under this Sectionany FCC or PUC license, each Borrower hereby grants to the Bank an irrevocablepermit, non-exclusive license (exercisable without payment of royalty certificate or other compensation authorization or right to use any Borrower) FCC or PUC license, permit, certificate or other authorization of the Grantors is integral to useSecured Parties ability to realize the value of the Collateral, license or sub-license that there is no adequate remedy at law for failure by any Grantor to comply with the provisions of this Section 5 and that such failure would not be adequately compensable in damages, and therefore agrees, without limiting the right of the Collateral consisting Agent to seek and obtain specific performance of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any other obligations of the licensed items may be recorded or stored and to all computer software and programs used for Grantors contained in this Agreement, that the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth agreements contained in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement5 may be specifically enforced.
Appears in 2 contracts
Sources: Security Agreement (Consolidated Communications Texas Holdings, Inc.), Security Agreement (Consolidated Communications Illinois Holdings, Inc.)
Remedies Upon Default. (a) Upon the occurrence and during the continuance of an Event of Default, the Borrowers shall each Pledgor agrees to deliver each item of Collateral to the Bank Applicable Representative on demand, and it is agreed that the Bank Applicable Representative shall have in the right to take any jurisdiction in which enforcement hereof is sought, in addition of or all the following actions at the same or different times: (a) with respect to any other rights Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and remedies, the rights and remedies of a secured party under the NYUCC or the UCC conveyance of any jurisdiction of or all such Article 9 Collateral by the applicable Pledgors to the Applicable Representative or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Applicable Representative shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which the Collateral is located, including, without limitation, the right, each Pledgor hereby agrees to use) and (b) with or without legal process (to the extent permitted by law) and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass (to the extent permitted by law) applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral (and for that purpose the Bank may, so far as any Borrower can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom) and, generally, to exercise any and all rights afforded to a secured party under the UCC applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Borrower Pledgor agrees that the Bank Applicable Representative shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, Collateral at a public or private sale or at any broker's ’s board or on any securities exchange, for cash, upon credit or for future delivery as the Bank Applicable Representative shall deem appropriate. The Applicable Representative shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01 the Applicable Representative shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any BorrowerPledgor, and each Borrower Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal which that such Borrower or Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
. The Applicable Representative shall give the applicable Pledgors 10 Business Days’ written notice (bwhich each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) Unless of the Collateral is perishable or threatens Applicable Representative’s intention to decline speedily make any sale of Collateral. Such notice, in value or is the case of a type customarily sold on a recognized marketpublic sale, the Bank shall give to the Borrowers at least ten days' prior written notice of state the time and place for such sale and, in the case of any public a sale of Collateral at a broker’s board or of on a securities exchange, shall state the time after board or exchange at which any private such sale or any other intended disposition is to be mademade and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Each Borrower hereby acknowledges that ten days’ prior written notice of such sale or sales shall be reasonable notice. Each Borrower hereby waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of the Bank's rights hereunder, including, without limitation, the right of the Bank following an Event of Default to take immediate possession of the Collateral and to exercise its rights with respect thereto.
(c) Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Bank Applicable Representative may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Bank Applicable Representative may (in its sole and absolute discretion) determine. The Bank Applicable Representative shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Bank Applicable Representative may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Bank Applicable Representative until the sale price is paid by the purchaser or purchasers thereof, but the Bank Applicable Representative shall not incur any liability in case the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon like noticenotice given in accordance with provisions above. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this SectionSection 5.01, the Bank any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Borrower Pledgor (all said such rights being also hereby waived and releasedreleased to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Bank such Secured Party from any Borrower Pledgor as a credit against the purchase price, and the Bank such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with Section 5.02 hereof without further accountability to any Borrower Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (ii) ; the Bank Applicable Representative shall be free to carry out such sale pursuant to such agreement and (iii) the Borrower no Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Bank Applicable Representative shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Bank Applicable Representative may proceed by a suit or suits at law or in equity to foreclose upon the Collateral this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.
(d) . Any sale conducted in accordance with pursuant to the provisions of this Section 7 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610 610(b) of the NYUCC New York UCC or the UCC of any its equivalent in other jurisdiction in which Collateral is located or any other requirement of applicable law. Without limiting the foregoing, any Borrower agrees and acknowledges that, to the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, it shall be commercially reasonable for the Bank to do any or all of the following: (i) fail to incur expenses deemed significant by the Bank to prepare Collateral for disposition or otherwise to complete raw materials or work in process into finished goods or other finished products for disposition; (ii) fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove Liens on any Collateral, (iv) exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (vii) hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) dispose of Collateral utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have reasonable capability of doing so, or that match buyers and sellers of assets, (ix) disclaim dispositions of warranties, (x) purchase (or fail to purchase) insurance or credit enhancements to insure the Bank against risk of loss, collection or disposition of Collateral or to provide to the Bank a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Bank, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. Nothing in this Section 7 shall be construed to grant any rights to any Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Security Agreement or applicable law in the absence of this Section 7 and the parties hereto acknowledge that the purpose of this Section 7 is to provide non-exhaustive indications of what actions or omissions by the Bank would be deemed commercially reasonable in the exercise by the Bank of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being set forth in this Section 7jurisdictions.
(e) For the purpose of enabling the Bank to exercise rights and remedies under this Section, each Borrower hereby grants to the Bank an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Borrower) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by any Borrower, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Bank may be exercised, at the option of the Bank, solely upon the occurrence and during the continuation of an Event of Default and the Obligations having become due and payable; provided that any license, sub-license or other transaction entered into by the Bank in accordance herewith shall be binding upon the Borrowers notwithstanding any subsequent cure of an Event of Default. Any royalties and other payments received by the Bank shall be applied in accordance with Section 8. The license set forth in this Section 7(e) shall terminate without any further action by either party once the Obligations have been indefeasibly paid in full in accordance with the Credit Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (RBS Global Inc), Guarantee and Collateral Agreement (RBS Global Inc)