Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents. (b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise (i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition. (c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein. (d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14. (e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default. (f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral. (g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense: (i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto; (ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party; (iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and (iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 3 contracts
Sources: Guarantee and Pledge Agreement, Guarantee and Pledge Agreement, Guarantee and Pledge Agreement
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (B) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (C) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Borrower will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorBorrower which may be waived, and each Pledgor hereby waives (the Borrower, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 3 contracts
Sources: Pledge Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp), Pledge Agreement (Rite Aid Corp)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Documents.
(b) Without limiting the generality of the foregoingforegoing and subject to the terms of the Intercreditor Agreement with respect to each Type of Common Collateral, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Personal Property Collateral and, in addition, the Secured Party Agent (with respect to the Collection Account and the Letter of Credit Account) and the Applicable Agent (with respect to any other Collateral Account) may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, withdraw all cash held in such Collateral Account and apply such cash as provided in Section 14 and, if there shall be no such cash or if such cash shall be insufficient to pay all the Secured Obligations in full, sell, lease, license or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sLien Grantor(s) as (and if) required by Section 1416. The foregoing provisions of this subsection shall apply to Real Property Collateral only to the extent permitted by applicable law and the provisions of any applicable Mortgage or other document.
(ec) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of if an Event of DefaultDefault shall have occurred and be continuing, the Secured Party may, and subject to applicable law, from time to time attempt to sell all or any part the terms of the Collateral by a private placement, restricting the bidders and prospective purchasers Intercreditor Agreement with respect to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number each Type of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Common Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverthe Agent may license or sublicense, whether general, special or otherwise, and cause whether on an exclusive or non-exclusive basis, any Pledged intellectual property (including any Pledged Recordable Intellectual Property) throughout the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective world for such period term or terms, on such conditions and in such manner as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, Agent shall in its sole discretion determine; provided that such licenses or sublicenses do not conflict with any existing license of which the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable theretoAgent shall have received a copy;
(ii) use the Agent may (without assuming any obligation or liability thereunder), at any time and from time to time, in its best efforts sole and reasonable discretion, enforce (and shall have the exclusive right to execute enforce) against any licensee or sublicensee all rights and deliverremedies of any Lien Grantor in, to and under any of its Pledged intellectual property and take or refrain from taking any action under any thereof, and cause each Lien Grantor releases the Subject Issuers Agent and the directors and officers thereof to execute and deliver, all such instruments and documentseach other Secured Party from liability for, and agrees to do hold the Agent and each other Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or cause omitted to be done all taken with respect thereto, except for claims and expenses arising from the Agent’s or such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws ’s gross negligence or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;willful misconduct; and
(iii) cause upon request by the Subject Issuers Agent (which shall not be construed as implying any limitation on its rights or powers), each Lien Grantor will execute and deliver to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions Agent a power of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary orattorney, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section form and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect substance satisfactory to the CollateralAgent, for the Secured Party is under no obligation to marshal implementation of any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electssale, and each Pledgor waives any right to require the marshaling lease, license or other disposition of any of such Lien Grantor’s Pledged intellectual property or any action related thereto. In connection with any such disposition, but subject to any confidentiality restrictions imposed on such Lien Grantor in any license or similar agreement, such Lien Grantor will supply to the CollateralAgent its know-how and expertise relating to the relevant intellectual property or the products or services made or rendered in connection with such intellectual property, and its customer lists and other records relating to such intellectual property and to the distribution of said products or services.
Appears in 3 contracts
Sources: Abl Security Agreement, Abl Security Agreement (Tower Automotive, LLC), First Lien Term Loan Security Agreement (Tower Automotive, LLC)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party :
(a) The Collateral Agent may exercise (in respect of the Collateral, in addition to any other rights and remedies provided for herein or cause its agents otherwise available to exercise) any or it, all of the rights and remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party upon default under the UCC Code (whether or not in effect in the jurisdiction where such rights are exercisedCode applies to the affected Collateral), and also may (i) take absolute control of the Collateral, including, without limitation, transfer into the Collateral Agent’s name or into the name of its nominee or nominees (to the extent the Collateral Agent has not theretofore done so) and thereafter receive, for the benefit of the Collateral Agent, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, (ii) all the powers given by section 30 require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Conveyancing Act 1983 Collateral Agent forthwith, assemble all or part of Bermuda (its respective Collateral as directed by the Conveyancing Act ) with respect Collateral Agent and make it available to the Collateral Agent at a place or places to be designated by 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 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 Collateral andGrantor in respect of such occupation, in addition, the Secured Party may, and (iii) without being required to give any notice, notice except as herein provided specified below and without any obligation to prepare or as may be required by mandatory provisions of lawprocess the Collateral for sale, sell, or otherwise dispose of (A) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially 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, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining. Each Grantor agrees that, to the extent necessary under applicable notice of sale or any other disposition of its respective Collateral shall be required by law, at least ten (10) days’ notice to any Grantor of the prior approval time and place of such any public sale or the time after which any private sale or other disposition by the Governmental Authority having jurisdiction with respect of its respective Collateral is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the The Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers Agent shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale or other disposition of any Collateral regardless of notice of sale having been given. The Secured Party Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Each Grantor hereby waives any claim claims against the Secured Party Collateral Agent and the Buyers arising because by reason of the fact that the price at which any its respective Collateral may have been sold at such a private sale was less than the price that which might have been obtained at a public salesale or was less than the aggregate amount of the Obligations, even if the Secured Party Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree, and waives all rights that any Grantor may have to require that all or any part of such Collateral be marshaled upon any sale (public or private) thereof. The Secured Party Each Grantor hereby acknowledges that (i) any such sale of its respective Collateral by the Collateral Agent shall be made without warranty, (ii) the Collateral Agent may specifically disclaim any warrantywarranties of title, as to title possession, quiet enjoyment or as to any other matter, in connection with such sale or other dispositionthe like, and its doing so (iii) such actions set forth in clauses (i) and (ii) above shall not be considered adversely to affect the commercial reasonableness of any such sale of Collateral. In addition to the foregoing, (1) upon written notice to any Grantor from the Collateral Agent after and during the continuance of an Event of Default, such Grantor shall cease any use of the Intellectual Property or other disposition.
any trademark, patent or copyright similar thereto for any purpose described in such notice; (c2) If the Secured Party sells Collateral Agent may, at any time and from time to time after and during the continuance of an Event of Default, upon 10 days’ prior notice to such 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 upon creditAgent shall in its sole discretion determine; and (3) the Collateral Agent may, the Pledgors will be credited only with payment actually made by the purchaserat any time, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject pursuant to the same rights and duties set forth herein.
authority granted in Section 6 hereof (d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only authority being effective upon the occurrence and during the continuation continuance of an Event of Default; provided that ), execute and deliver on behalf of such Grantor, one or more instruments of assignment of the Intellectual Property (or any licenseapplication or registration thereof), sublicense in form suitable for filing, recording or other transaction entered into by the Secured Party registration in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcountry.
(fb) Each Pledgor hereby acknowledges that the sale Any cash held by the Secured Party Collateral Agent as Collateral and all Cash Proceeds received by the Collateral Agent in respect of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky sale of or collection from, or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another mannerrealization upon, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers shall be applied (after payment of any amounts payable to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral Agent pursuant to Section 8 hereof) by the Collateral Agent against, all or any part thereof for cashof the Obligations in such order as the Collateral Agent shall elect, from a limited number consistent with the provisions of investors reasonably believed the Securities Purchase Agreements. Any surplus of such cash or Cash Proceeds held by the Secured Party Collateral Agent and remaining after the indefeasible payment in full in cash of all of the Obligations shall be paid over to whomsoever shall be institutional investors 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 Collateral Agent and the Buyers are legally entitled, each Grantor shall be liable for the deficiency, together with interest thereon at the highest rate specified in the Notes for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs 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, provincial, 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 accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing disposition of the Collateral.
(ge) If The Collateral Agent shall not be required to marshal any present or future collateral security (including, but not limited to, this Agreement and the Secured Party shall determine to exercise its right to sell all Collateral) for, or other assurances of payment of, the Obligations or any portion of them or to resort to such collateral security or other assurances of payment in any particular order, and all of the Collateral pursuant Agent’s rights hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to this Sectionall other rights, however existing or arising. To the extent that any Grantor lawfully may, each Pledgor Grantor hereby agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement that it will not invoke any law relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, marshaling of collateral which might cause delay in or impede the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale enforcement of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any Agent’s rights under this Agreement or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of other instrument creating or evidencing any of the CollateralObligations 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 3 contracts
Sources: Security Agreement (Stinger Systems, Inc), Security Agreement (Stinger Systems, Inc), Security Agreement (Stinger Systems, Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing:
(a) The Trustee may exercise, in addition to all other rights given by law or by this Agreement or the Secured Party may exercise (or cause its agents to exercise) any or Indenture, all of the rights and remedies available with respect to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights Collateral of a secured party under the UCC (whether or not Uniform Commercial Code as in effect from time to time in any relevant jurisdiction and also may, without notice except as specified below, (i) sell, redeem or liquidate any of the jurisdiction where such rights are exercised) and Collateral, (ii) transfer any or all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda Collateral to any account designated by the Trustee, including an account or accounts established in the Trustee’s name, (the Conveyancing Act iii) with respect register title to any Collateral andin any name specified by the Trustee, in addition, including the Secured Party mayname of the Trustee or any of its nominees or agents, without being required reference to give any notice, except as herein provided or as may be required by mandatory provisions interest of law, sellthe Grantor, or otherwise dispose of (iv) sell the Collateral or any part thereof in one or more parcels at any broker’s board or at public or private sale, at any exchangein one or more sales or lots, broker s board or at any of the Secured Party s Trustee’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Trustee may deem commercially reasonable. The Grantor agrees that the Collateral is of a type customarily sold on recognized markets and, irrespective accordingly, that no notice to any Person is required before any sale of any of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral pursuant to the Secured Party s or terms of this Agreement; provided, however that, without prejudice to the relevant Pledgor s obtainingforegoing, to the extent necessary under applicable notice of any such sale shall be required by law, the prior approval Grantor agrees that at least ten days’ notice to the Grantor of such the time and place of any public sale or other disposition by the Governmental Authority having jurisdiction with respect time after which any private sale is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers The Trustee shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To The purchaser of any or all Collateral so sold shall thereafter hold the maximum extent permitted same absolutely free from any claim, encumbrance or right of any kind whatsoever created by lawor through the Grantor. Any sale of the Collateral conducted in conformity with reasonable commercial practices of banks, each Pledgor hereby waives any claim against insurance companies, commercial finance companies, or other financial institutions disposing of property similar to the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral shall be deemed to more than one offereebe commercially reasonable. The Secured Party may disclaim Trustee or any warranty, as to title or as to any other matterHolder of Notes may, in connection with such sale its own name or other dispositionin the name of a designee or nominee, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells buy any of the Collateral upon creditat any public sale and, if permitted by applicable law, at any private sale. All expenses (including court costs and reasonable attorneys’ fees, expenses and disbursements) of, or incident to, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice enforcement of any such of the provisions hereof shall be recoverable from the proceeds of the sale or other disposition of the Collateral. If there are insufficient Pledged Securities together with proceeds of Pledged Securities and other Collateral in the Pledge Account to make any required payment on the Secured Obligations, the Grantor shall be given liable to the relevant Pledgor(s) as (and if) required by Section 14Trustee for any deficiency.
(eb) For All cash proceeds received by or on behalf of the purpose Trustee in respect of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesany sale of, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty collection from, or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only realization upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral may, following the payment of the reasonable fees and expenses of the Trustee, be held by a private placementthe Trustee (or by the Pledged Securities Intermediary on its behalf) as collateral for, restricting and/or then or at any time thereafter applied (after payment of any amounts payable to the bidders Trustee pursuant to Section 14) in whole or in part by the Trustee as provided in clause SECOND of Section 4.13 of the Indenture. Any surplus of such cash or cash proceeds held by or on behalf of the Trustee and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, remaining after payment in full of all the Secured Party may solicit offers Obligations shall be paid over as provided in clause THIRD of Section 4.13 of the Indenture.
(c) The Trustee may, without notice to buy the Collateral Grantor except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors Obligations against the Pledge Account or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralany part thereof.
(gd) If the Secured Party shall determine The Grantor further agrees to exercise use its right commercially reasonable efforts to sell do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute Section 13 valid and deliver, binding and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with any and all other applicable requirements of law. Each Pledgor acknowledges The Grantor further agrees that there is a breach of any of the covenants contained in this Section 13 will cause irreparable injury to the Trustee and the Holders of the Notes, that the Trustee and the Holders of the Notes have no adequate remedy at law for failure by it to comply with the provisions in respect of this Section such breach and, as a consequence, that each and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements every covenant contained in this Section may 13 shall be specifically enforced. Each of enforceable against the Pledgors acknowledges Grantor and, to the fullest extent permitted by law, the Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that in exercising any rights under or with respect to the Collateral, the Secured Party no Event of Default has occurred and is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcontinuing.
Appears in 3 contracts
Sources: Pledge Agreement (Nektar Therapeutics), Pledge Agreement (Nektar Therapeutics), Pledge Agreement (Nektar Therapeutics)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent, may without notice to the Pledgor, exercise (or cause its agents to exercise) any or all in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it (whether in equity or to such agents) under the Security Documents.
(b) Without limiting the generality in law), all of the foregoingrights and remedies available to it, if an Event of Default shall have occurred all rights and be continuing, the Secured Party may exercise
(i) all the rights remedies of a secured party on default under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 Article 9 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral andUniform Commercial Code, in addition, the Secured Party may, and may without being required to give any notice, notice except as herein provided or as may be required by mandatory provisions of lawspecified below, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time delivery or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem reasonably believe are commercially reasonable, irrespective of the impact reasonable without assumption of any such sales on the market price of the Collateral; provided that credit risk, with the right of the Secured Party Collateral Agent to sell purchase all or otherwise dispose any part of an Equity Interest the Collateral so sold at any such sale or sales, public or private, free of any equity or right of redemption in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtainingPledgor, which right of equity is, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, hereby expressly waived or released by the Secured Party may Pledgor. The Collateral Agent shall be the purchaser of any or all of the Collateral 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 shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of agree that they are purchasing the Collateral sold at for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such public salesale the Collateral Agent shall have the right to assign, to use transfer and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge deliver to the purchaser or purchasers of thereof the Collateral so sold and such purchaser sold. The Pledgor agrees that a private sale or purchasers sales made under the foregoing circumstances shall not be obligated deemed to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable have been made in any way for the misapplication thereofa commercially reasonable manner. Each such purchaser at any such sale (including the Collateral Agent) shall hold the property sold absolutely absolutely, free from any claim or right on the part of any the Pledgor, and each the Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or and appraisal that it which the 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 Secured Party Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten Business Days' prior written notice of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notice within the meaning of Section 9-611 of the Uniform Commercial Code. 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 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 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 Collateral Agent may, in its sole and absolute discretion, determine. The Collateral Agent shall not be obliged obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale having of such Collateral shall have been given. The Secured Party may 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 thereforfor sale, and such sale may, without further notice, be made at the time and place to which it the same was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives In case any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing is made on credit or for investment only and not for distribution. In doing sofuture delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the 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 sale made pursuant to this Section 6, the Collateral Agent or any other Secured Party may solicit offers bid for or purchase, free (to buy the extent permitted by law) from any equity or right of redemption, stay or appraisal on the part of the Pledgor (all said rights being also hereby expressly waived and released to the extent permitted by law), the Collateral or any part thereof offered for cashsale and may make payment on account thereof by using any claim then due and payable to the Collateral Agent or any other Secured Party from the Pledgor as a credit against the purchase price, from a limited number of investors reasonably believed by and the Secured Party Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to be institutional investors or other accredited investors who might be interested in purchasing the CollateralPledgor therefor. If For purposes hereof, a written agreement to purchase the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such agreement, and the Pledgor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full; provided, however, that in the event the Obligations shall have been paid in full, the Pledgor shall be entitled to the return of the proceeds of the sale of any such Collateral to the extent not applied to payment of the Obligations. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, Pledge Agreement and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of sell the Collateral or any part portion thereof in compliance with applicable lawpursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each All of the Pledgors acknowledges rights and agrees that in exercising any rights under or with respect remedies granted to the CollateralCollateral Agent, including but not limited to the Secured Party is under no obligation to marshal any Collateral foregoing, shall be cumulative and may in its absolute discretion realize upon not exclusive and shall be enforceable alternatively, successively or concurrently as the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAgent may deem expedient.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Metris Companies Inc), Senior Secured Credit Agreement (Metris Companies Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Banks all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Collateral Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Collateral to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Collateral, and (ii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose Collateral Agent reasonably deems necessary or advisable in order to comply with the Securities Act of bidding and making settlement or payment of the purchase price for all 1933 or any portion of other law. Each Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent reasonably deems necessary or advisable in order that any such public sale, to use and apply all sale of any part of the Secured Obligations as a credit on account of the purchase price of any its Collateral payable at such salemay be made in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorPledgor which may be waived, and each Pledgor hereby waives (Pledgor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that it now which such Pledgor has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 5 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Collateral Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distributionor any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. In doing so, the Secured Party may solicit offers to buy All remedies of the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers Agent hereunder shall be deemed to be exercised by it in a commercially reasonable method of disposing of the Collateralmanner.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Universal City Development Partners LTD), Credit Agreement (Universal City Development Partners LTD)
Remedies Upon Event of Default. (aA) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein or in the Credit Agreement or any other Financing Document provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such cash or otherwise dispose of Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Pledgor will execute and deliver such documents and take such other action as the Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorPledgor which may be waived, and each Pledgor hereby waives (Pledgor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gB) If For the Secured Party shall determine to exercise its right to sell purpose of enforcing any and all or any portion of rights and remedies under this Agreement the Collateral pursuant to this SectionAgent may (i) require each Pledgor to, and each Pledgor agrees that, upon request of the Secured Party, such Pledgor that it will, at its own expense:
(i) use its best efforts to execute expense and deliverupon the request of the Agent, forthwith assemble all or any part of the Collateral as directed by the Agent and cause make it available at a place designated by the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orAgent which is, in the opinion of the Secured Partyits opinion, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and reasonably convenient to the related prospectuses whichAgent and such Pledgor, in whether at the opinion premises of the Secured Partysuch Pledgor or otherwise, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute the extent permitted by applicable law, enter, with or without process of law and deliverwithout breach of the peace, any premise where any of the Collateral is or may be located, and cause the Subject Issuers without charge or liability to it seize and the directors remove such Collateral from such premises, (iii) have access to and officers thereof use any Pledgor's books and records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and (iv) prior to obtain all necessary approvals from relevant Governmental Authorities for the sale disposition of the Collateral, as requested store or transfer it without charge in or by means of any storage or transportation facility owned or leased by any Pledgor, process, repair or recondition it or otherwise prepare it for disposition in any manner and to the Secured Party;
(iii) cause extent the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; Agent deems appropriate and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinionconnection with such preparation and disposition, desirable to facilitate such sale of the Collateral use without charge any trademark, trade name, copyright, patent or technical process used by any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralPledgor.
Appears in 2 contracts
Sources: Credit Agreement (Horizon Medical Products Inc), Credit Agreement (Horizon Medical Products Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without obligation to resort to other security under any other Security Documents or to recourse against any other guarantor (including without limitation the Subsidiary), surety or other person liable, and without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell(a) apply the cash, if any, then held by it as Collateral as specified in Section 12, and (b) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part parts thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent, acting reasonably, may deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of if the Collateral so is of a type customarily sold and such purchaser in a recognized market or purchasers shall not be obligated to see to is of a type which is the application subject of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser widely distributed standard price quotations at any such sale shall private sale) and thereafter hold the property sold absolutely same, absolutely, free from any claim equity or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness right or claim of such sale or other dispositionwhatsoever kind.
(cb) If Notwithstanding anything to the contrary contained herein or any other Loan Document, neither the Collateral Agent nor any Secured Party sells shall, without first obtaining approval of a Governmental Authority, take any action pursuant to this Pledge Agreement or any other Loan Document which would constitute or result in an assignment of any License held by the Pledgor or any of its Subsidiaries, or which would constitute a transfer of control of any Subsidiary that holds a License (including without limitation, any voting of the Collateral upon creditPledged Stock), if such assignment or transfer would require, under the existing applicable law, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereofprior approval of such Governmental Authority. In the event the purchaser fails The Pledgor agrees to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgortake, and including the Pledgor agrees to cause each of its Subsidiaries to take, in such license 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 Secured Party may be exercised only each case upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation continuance of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of action that the Collateral by a private placement, restricting the bidders and prospective purchasers Agent may reasonably request in order to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or obtain from any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit Governmental Authority such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, approval as may be necessary orto enable the Collateral Agent to transfer the Pledged Securities pursuant to this Pledge Agreement, the Loan Documents and each other agreement, instrument and document delivered to the Collateral Agent in connection herewith and therewith, including specifically, at the opinion expense of the Secured PartyPledgor, desirable to register such Collateral under the provisions use of the Securities ActPledgor's and each of its Subsidiaries' commercially reasonable efforts to assist in obtaining approval of such Governmental Authority for any action or transaction contemplated by this Agreement for which such approval is or shall be required by law, and specifically, without limitation, upon request, to cause prepare, sign and file with such Governmental Authority, the registration statement relating thereto to become effective and to remain effective assignor's or transferor's portion of any application or applications for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and consent to the related prospectuses which, in the opinion transfer of the Secured Party, are any Pledged Securities necessary or desirable, all in conformity with the requirements of the Securities Act and appropriate under the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so Governmental Authority for approval of any sale or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling sales of any of the CollateralCollateral by or on behalf of the Collateral Agent or any assumption by the Collateral Agent of voting rights relating thereto effected in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Remedies Upon Event of Default. If prior to April 15, 2007, (ai) If an any Event of Default shall have occurred and be continuingcontinuing and (ii) the Trustee, by notice to the Secured Party may exercise (Grantor, or cause its agents to exercise) any or all the Holders of at least 25% in aggregate principal amount of the remedies available Securities at the time outstanding by written notice to it (or to such agents) under the Security Documents.
(b) Without limiting Grantor and the generality of Trustee, may declare the foregoing, Notes due and payable at their principal amount together with any accrued and unpaid interest; provided if an Event of Default specified in clauses (g) or (h) of Section 5.01 of the Indenture occurs and is continuing, then the principal and any accrued and unpaid interest on all the Securities shall have occurred become and be continuingimmediately due and payable without any declaration or other act on the part of the Trustee or any Holders, the Secured Party then:
(a) The Trustee may exercise
(i) , in addition to all other rights given by law or by this Agreement or the Indenture, all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not Uniform Commercial Code as in effect from time to time in any relevant jurisdiction and also may, without notice except as specified below, (i) sell, redeem or liquidate any of the jurisdiction where such rights are exercised) and Collateral, (ii) transfer any or all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda Collateral to any account designated by the Trustee, including an account or accounts established in the Trustee’s name, (the Conveyancing Act iii) with respect register title to any Collateral andin any name specified by the Trustee, in addition, including the Secured Party mayname of the Trustee or any of its nominees or agents, without being required reference to give any notice, except as herein provided or as may be required by mandatory provisions interest of law, sellthe Grantor, or otherwise dispose of (iv), sell the Collateral or any part thereof in one or more parcels at any broker’s board or at public or private sale, at any exchangein one or more sales or lots, broker s board or at any of the Secured Party s Trustee’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Trustee may deem commercially reasonable. The Grantor agrees that the Collateral is of a type customarily sold on recognized markets and, irrespective accordingly, that no notice to any Person is required before any sale of any of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral pursuant to the Secured Party s or terms of this Agreement; provided, however that, without prejudice to the relevant Pledgor s obtainingforegoing, to the extent necessary under applicable notice of any such sale shall be required by law, the prior approval Grantor agrees that at least ten days’ notice to the Grantor of such the time and place of any public sale or other disposition by the Governmental Authority having jurisdiction with respect time after which any private sale is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers The Trustee shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To The purchaser of any or all Collateral so sold shall thereafter hold the maximum extent permitted same absolutely free from any claim, encumbrance or right of any kind whatsoever created by lawor through the Grantor. Any sale of the Collateral conducted in conformity with reasonable commercial practices of banks, each Pledgor hereby waives any claim against insurance companies, commercial finance companies, or other financial institutions disposing of property similar to the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral shall be deemed to more than one offereebe commercially reasonable. The Secured Party may disclaim Trustee or any warranty, as to title or as to any other matterHolder of Securities may, in connection with such sale its own name or other dispositionin the name of a designee or nominee, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells buy any of the Collateral upon creditat any public sale and, if permitted by applicable law, at any private sale. All expenses (including court costs and reasonable attorneys’ fees, expenses and disbursements) of, or incident to, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice enforcement of any such of the provisions hereof shall be recoverable from the proceeds of the sale or other disposition of the Collateral. If there are insufficient Pledged Securities together with proceeds of Pledged Securities and other Collateral in the Pledge Account to make any required payment on the Secured Obligations, the Grantor shall be given liable to the relevant Pledgor(s) as (and if) required by Section 14Trustee for any deficiency.
(eb) For All cash proceeds received by or on behalf of the purpose Trustee in respect of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesany sale of, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty collection from, or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only realization upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placementmay, restricting following the bidders payment of the reasonable fees and prospective purchasers to those who will represent expenses of the Trustee and agree that they are purchasing for investment only and not for distribution. In doing sothe Pledged Securities Intermediary, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be held by the Secured Party to be institutional investors Trustee (or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party Pledged Securities Intermediary on its behalf) as collateral for, and/or then or at any time thereafter applied (after payment of one of any amounts payable to the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral Trustee pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(iSection 14) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so in whole or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested part by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, Trustee as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.follows:
Appears in 2 contracts
Sources: Pledge Agreement (Oscient Pharmaceuticals Corp), Pledge Agreement (Oscient Pharmaceuticals Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Bank may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Bank may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose sell any and all of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Bank may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. The Company will execute and deliver such documents and take such other action as the Bank deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Bank shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany. The Company, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by SECTION 5 hereof shall (i) in case of a public sale, state the time and place fixed for such sale, and (ii) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time(s) within ordinary business hours and at such places as the Bank may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Bank may determine. The Bank shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Bank until the selling price is paid by the purchaser thereof, but the Bank shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Bank, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gb) If For the Secured Party shall determine to exercise purpose of enforcing its right to sell all or any portion of rights and remedies under this Agreement, the Collateral pursuant to this SectionBank may (i) require the Company to, each Pledgor and the Company agrees that, upon request of the Secured Party, such Pledgor that it will, at its own expense:
(i) use its best efforts to execute expense and deliverupon the request of the Bank, forthwith assemble all or any part of the Collateral as directed by the Bank and cause make it available at a place designated by the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orBank which is, in its opinion, reasonably convenient to the opinion Bank, whether at the premises of the Secured PartyCompany or otherwise, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute the extent permitted by law, enter, with or without process of law and deliverwithout breach of the peace, any premise where any of the Collateral may be located, and cause without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use the Subject Issuers Company's books and the directors and officers thereof records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and (iv) prior to obtain all necessary approvals from relevant Governmental Authorities for the sale disposition of the Collateral, as requested store or transfer it without charge in or by means of any storage or transportation facility owned or leased by the Secured Party;
(iii) cause Company, process, repair or recondition it or otherwise prepare it for disposition in any manner and to the Subject Issuers extent the Bank deems appropriate to make available to their respective security holderspreserve and enhance its value and, in connection with such preparation and disposition, use, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
a licensee (iv) do or cause to be done all such other acts and things as may be necessary or, if no decline in the Secured Party s opinion, desirable to facilitate such sale value of the Collateral would result, otherwise) without charge any trademark, trade name, copyright, patent or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure technical process used by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralCompany.
Appears in 2 contracts
Sources: Security Agreement (Lionbridge Technologies Inc /De/), Security Agreement (Lionbridge Technologies Inc /De/)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be is continuing, the then Secured Party may exercise Party, at its option, without demand, presentment, notice of acceleration, intention to accelerate, or other notice (or cause its agents to exercisewhich are fully waived) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercisemay:
(i) exercise all the rights of a secured party under the UCC Code (whether or not the Code is in effect in the jurisdiction where such rights are exercised) and , unless prohibited by applicable law).
(ii) all apply the powers given cash, if any, then held by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or Collateral as may be required by mandatory provisions of law, sell, or otherwise dispose specified in SECTION 5.6.
(iii) sell all of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on credit upon credit, or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may reasonably deem commercially reasonablesatisfactory. Upon Secured Party's demand, irrespective of Pledgor will take all steps necessary to prepare the impact of Collateral for and otherwise assist in any such sales on the market price proposed disposition of the Collateral; provided that the right . Any holder of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Indebtedness may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all if the Collateral is of any part a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if the subject Collateral is an interest or other Collateral that is the subject of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)immediately following paragraph, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall private sale) and thereafter hold the property sold same absolutely free from any right or claim or of whatsoever kind. Any holder of the Secured Indebtedness shall have the right on to offset the part amount of any Pledgorits bid against an equal amount of the Secured Indebtedness held by such holder. If a third party is the purchaser at a foreclosure sale, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The neither Secured Party shall not be obliged to make nor any sale of Collateral regardless its affiliates may directly or indirectly benefit from such foreclosure sale, other than payment of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because Indebtedness from the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness proceeds of such sale or other dispositionforeclosure sale.
(cb) If the Secured Party sells any The sale of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, is also subject to the same rights and duties set forth herein.following:
(di) Notice Pledgor agrees that, because of the Securities Act of 1933, as amended, or any such sale other laws or regulations, and for other disposition shall reasons, there may be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the legal and/or practical restrictions or limitations affecting Secured Party in any attempts to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment dispose of royalty or other compensation to such Pledgor), to use, license or sublicense any certain portions of the Collateral consisting and for the enforcement of Intellectual Property now owned or hereafter acquired their rights. For these reasons, Secured Party is hereby authorized by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees thatbut not obligated, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by at private sale, subject to investment letter or in any other manner which will not require the Collateral, or any part thereof, to be registered in accordance with the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder, or any other laws, at a reasonable price at such private placementsale or other distribution in the manner mentioned above. Pledgor understands that Secured Party may in its discretion approach a limited number of potential purchasers and that a sale under such circumstances may yield a lower price for the Collateral, restricting or any part thereof, than would otherwise be obtainable if such Collateral were either afforded to a larger number of potential purchasers or registered or sold in the open market. Pledgor agrees that such private sale shall be deemed to have been made in a commercially reasonable manner, and that Secured Party has no obligation to delay the sale of any Collateral to permit the issuer thereof to register it for public sale under any applicable federal or state securities laws.
(ii) Secured Party is authorized in connection with any such sale to (A) restrict the prospective bidders and prospective on or purchasers of any of the Collateral to those a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment only and not for distributionwith a view to the distribution or sale of any of such Collateral, and (B) impose such other limitations or conditions in connection with any such sale as Secured Party reasonably deems necessary in order to comply with applicable law.
(c) Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party reasonably deems necessary in order that any such sale may be made in compliance with applicable law. Upon any such sale Secured Party shall have the right to deliver, assign, and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold absolutely free from any claim or right of Pledgor of whatsoever kind, including any equity or right of redemption of Pledgor. Pledgor, to the extent permitted by applicable law, hereby specifically waives all rights of redemption, stay, or appraisal which it has or may have under any law now existing or hereafter enacted. In doing socase of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold, and in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(d) Pledgor agrees that ten (10) days' written notice from Secured Party to Pledgor of Secured Party's intention to make any such public or private sale or sale at a broker's board or on a securities exchange shall constitute "reasonable notification" within the meaning of Section 9-504(c) of the Code. Such notice shall (i) in case of a public sale, state the time and place fixed for such sale, (ii) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such a sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered to sale at such board or exchange, and (iii) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may solicit offers fix in the notice of such sale. At any such sale, the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may reasonably determine. Secured Party shall not be obligated to buy make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned.
(e) Without limiting the foregoing or imposing upon Secured Party any obligations or duties not required by applicable law, Pledgor acknowledges and agrees that, in foreclosing upon any of the Collateral or exercising any part thereof for cash, from a limited number of investors reasonably believed by the other rights or remedies provided Secured Party to hereunder or under applicable law, Secured Party may, but shall not be institutional investors required to: (i) qualify or restrict prospective purchasers of the Collateral by requiring evidence of sophistication and/or creditworthiness, and requiring the execution and delivery of confidentiality agreements or other accredited investors who might be interested documents and agreements as a condition to such prospective purchasers' receipt of information regarding the Collateral or participation in purchasing any public or private foreclosure sale process; (ii) provide to prospective purchasers the LLC Agreement and business and financial information regarding the Company available in the files of Secured Party at the time of commencing the foreclosure process, without the requirement that Secured Party obtain, or seek to obtain, any updated business or financial information or LLC Agreement, or verify or certify to prospective purchasers the accuracy of any such business or financial information or LLC Agreement; (iii) sell at foreclosure all, or a portion but not all, of the rights, titles, and interests of Pledgor in the Company; it being further specifically acknowledged by Pledgor that limitations or potential limitations on the transfer of certain Collateral under the LLC Agreement or other applicable agreements or law may limit Secured Party's right or ability to foreclose upon or sell certain rights, titles, and interests of Pledgor in the Company; or (iv) offer for sale, and sell, membership interests either with, or without, first employing an appraiser, investment banker, or broker with respect to the evaluation of Collateral. If , the solicitation of purchasers for Collateral, or the manner of sale of Collateral.
(f) Secured Party shall solicit such offershave all rights, then remedies, and recourse granted in the acceptance Note and the other Loan Documents or existing at common law or equity (including specifically those granted by the Secured Party of one of the offers Code), and such rights and remedies (i) shall be deemed cumulative and concurrent, (ii) may be pursued separately, successively, or concurrently against Pledgor and any party obligated to be a commercially reasonable method of disposing pay or perform the Secured Indebtedness, any of the Collateral, or any other security for any of the Secured Indebtedness, at the sole discretion of Secured Party, and (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Pledgor that the exercise or failure to exercise any such rights or remedies shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse.
(g) If the Secured Party shall determine to exercise its right to sell all or Notwithstanding a foreclosure upon any portion of the Collateral pursuant or exercise of any other remedy by Secured Party in connection with an Event of Default, until the payment in full of all Secured Indebtedness, Pledgor shall not be subrogated thereby to this Section, each Pledgor agrees that, upon request any rights of Secured Party against the Collateral or any other security for any of the Secured Party, such Indebtedness. Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so shall not be deemed based on any subrogation or cause other rights it may have to be done all such other acts and things, as may be necessary or, the owner of any interest in the opinion any of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, Indebtedness unless and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make until all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act Indebtedness has been indefeasibly paid to Secured Party and the rules fully performed and regulations of the Securities and Exchange Commission applicable thereto;discharged.
(iih) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so All recitals in any instrument of assignment or cause to be done all such any other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested instrument executed by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinionincident to the sale, desirable to facilitate such sale transfer, assignment, or other disposition or utilization of the Collateral or any part thereof hereunder shall be presumptive evidence of the matters stated therein and all prerequisites of such sale or other action contained in compliance with applicable law. Each Pledgor acknowledges such recitals shall be presumed to have been performed or to have occurred.
(i) Secured Party agrees that there is no adequate remedy if (A) Secured Party elects to sell the Collateral at law for failure a public sale, and (B) Secured Party purchases the Collateral at such public sale, then the purchase price of the Collateral paid by it to comply with the provisions of this Section and that such failure would Secured Party shall not be adequately compensable less than an amount equal to the Applicable Percentage of the difference between (i) the value of the Company's oil and gas properties at the time of foreclosure determined by an independent engineering firm selected by Secured Party recognized as an expert in damagesreservoir engineering using the parameters set forth on EXHIBIT A attached hereto, and therefore agrees (ii) all indebtedness, obligations, and liabilities of the Company (including the amount of any liens, security interests, or encumbrances affecting any of the assets or properties of the Company) at the time of foreclosure; provided that its agreements nothing contained in this Section may SUBSECTION (I) shall be specifically enforced. Each of the Pledgors acknowledges and agrees deemed to require that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling conduct a public sale of any of the Collateral or purchase any of the Collateral at any public sale of the Collateral. "APPLICABLE PERCENTAGE" means the ratio that the membership interests in the Company comprising the Collateral sold bears to the entire membership interests in the Company.
Appears in 2 contracts
Sources: Pledge Agreement (Venus Exploration Inc), Pledge Agreement (Exco Resources Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC Uniform Commercial Code (whether or not the Uniform Commercial Code is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral, and (ii) if there shall be no such cash or otherwise dispose if such cash shall be insufficient to pay all the Secured Obligations in full then, after ten (10) days written notice by the Secured Party to the Debtors of acceleration of the Collateral Secured Obligations, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party shall deem satisfactory. The Secured Party may deem commercially reasonable, irrespective require the Debtors to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral and make it available to the Secured Party s or the relevant Pledgor s obtaining, at a place to the extent necessary under applicable law, the prior approval of such sale or other disposition be designated by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party which is reasonably convenient. Any holder of an Obligation may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of the Debtors. The Secured Party shall give the Debtors ten (10) days’ prior written notice of its intention to make any such public or private sale or sale at a broker’s board or on a securities exchange. Such notice, in case of a public sale, shall state the part of any Pledgortime and place fixed for such sale, and each Pledgor hereby waives (in case of sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the extent permitted by law) all rights of redemptionday on which the Collateral, stay or appraisal that it now has the portion thereof so being sold, 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 Secured Party may at any time fix in the future have under notice of such sale. At any rule of law such sale the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of notice of sale having been givensuch notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof, but the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one not incur any liability in case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gb) If The Secured Party, instead of exercising the Secured Party shall determine power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to exercise its right to foreclose the Security Interests and sell all the Collateral, or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Security Agreement (Quality Gold Holdings, Inc.), Security Agreement (Quality Gold Holdings, Inc.)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Loan Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale and shall be entitledthe Agent (as administrative agent for and representative of the Secured Parties), 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, shall be entitled to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party Agent sells any of the Collateral upon credit, the Pledgors Grantors will be credited only with payment actually made by the purchaser, received by the Secured Party Agent and applied in accordance with Section 12 14 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14Applicable Law. Each Grantor hereby agrees that 10 days’ written notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable.
(e) For the purpose of enabling the Secured Party Agent to exercise rights and remedies under this Agreement at such time as the Secured Party Agent shall be lawfully entitled to exercise such rights and remedies, each Pledgor Grantor hereby grants to the Secured Party an irrevocable Agent a license (exercisable without payment of royalty or other compensation to the Grantors and subject to any prior rights granted by such PledgorGrantor to third parties), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs (solely to the extent permitted by the relevant licenses therefor) used for the compilation or printout thereof; provided, however, that any trademarks or service marks licensed pursuant to the foregoing may be used only in connection with goods and services of similar type and similar or greater quality than those theretofore sold by such Grantor under such trademark or service ▇▇▇▇. The use of such license by the Secured Party Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided provided, however, that any license, license or sublicense or other transaction entered into by the Secured Party Agent in accordance herewith shall be binding upon such Pledgor each Grantor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (School Specialty Inc), Guarantee and Collateral Agreement (School Specialty Inc)
Remedies Upon Event of Default. (a) If Upon the occurrence of an Event of Default shall have occurred and be continuingduring the continuance thereof, the Secured Party may exercise any one or more of the rights and remedies specified in the Credit Agreement, and also any one or more of the following rights or remedies: (i) notify the obligor on or cause issuer of any Collateral or any securities intermediary to make payment to Secured Party of any amounts due or distributable on any Collateral, (ii) in Debtor's name or Secured Party's name enforce collection of any Collateral by suit or otherwise, or surrender, release or exchange all or any part of it, or compromise, extend or renew for any period any obligation evidenced by the Collateral, (iii) receive and keep in its agents possession or under its control subject to exercisethe Security Interest all proceeds of Collateral, except that any money received from the Collateral may, at Secured Party's option, be applied in reduction of the Obligations; (iv) exercise all voting and other rights as a holder of any Collateral; (v) exercise and enforce any or all of the rights and remedies available upon default to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Uniform Commercial Code, including the right to (whether A) order any securities intermediary to sell any Collateral on any established market or not in effect in over the jurisdiction where such rights are exercisedcounter or to cause any Collateral to be redeemed; (B) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect give any transfer or redemption order to any issuer of Collateral; or (C) offer and sell Collateral and, in addition, the Secured Party may, without being required privately to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of purchasers who will agree to take the Collateral or for investment and not with a view to distribution and who will agree to the imposition of restrictive legends on any part thereof in one or more parcels at public or private salecertificates representing Collateral, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or arrange for a sale which would otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations qualify as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free exempt from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register registration under the Securities Act in order of 1933; and if notice to obtain the maximum possible price for the Collateral. Without limiting the generality Debtor of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation any intended disposition of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashother intended action is required by law in a particular instance, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers notice shall be deemed to be a commercially reasonable method if given at least 10 calendar days prior to the date of disposing of the Collateral.
intended disposition or other action; and (gvi) If the exercise or enforce any or all other rights or remedies available to Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the agreement against any Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do against Debtor or cause to be done all such against any other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral person or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralproperty.
Appears in 2 contracts
Sources: Secured Credit Agreement (First Banks, Inc), Secured Credit Agreement (First Banks Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent may, in addition to exercise) any or all of the other rights and remedies available granted to it in this Agreement and in any other agreement securing, evidencing or relating to the U.S. Finance Obligations (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the Secured Party may exercise
right to give instructions or a notice of sole or exclusive control under an Account Control Agreement): (i) exercise on behalf of the Secured Parties all the rights and remedies of a secured party under the UCC and other applicable laws (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of lawLaw) to or upon any U.S. Loan Party or any other Person (all of which demands and/or notices are hereby waived by each U.S. Loan Party), (A) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 5.05, (B) give notice and take sole possession and control of all amounts on deposit in or credited to any Deposit Account or Securities Account pursuant to the related Account Control Agreement and apply all such funds as specified in Section 5.05 and (C) if there shall be no such cash, Liquid Investments or other amounts or if such cash, Liquid Investments and other amounts shall be insufficient to pay all the U.S. Finance Obligations in full or cannot be so applied for any reason, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonablesatisfactory.
(b) If any Event of Default has occurred and is continuing, irrespective the Collateral Agent shall give each U.S. Loan Party not less than 10 days’ prior written notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the CollateralCollateral permitted by this Article V, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in Section 9613 of the UCC, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each U.S. Loan Party agree that such notice constitutes reasonable notification within the right meaning of Section 9611 of the Secured UCC. Except as otherwise provided herein, each U.S. Loan Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable lawLaw, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each U.S. Loan Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with Law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy be retained by the Collateral or any part thereof for cash, from a limited number of investors reasonably believed Agent until the selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested purchaser thereof, but the Collateral Agent shall not incur any liability in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gd) If For the Secured Party shall determine to exercise its right to sell purpose of enforcing any and all or any portion of rights and remedies under this Agreement, the Collateral pursuant to this SectionAgent may, if any Event of Default has occurred and is continuing, (i) require each Pledgor U.S. Loan Party to, and each U.S. Loan Party agrees that, upon request of the Secured Party, such Pledgor that it will, at its own expense:
(i) use its best efforts to execute expense and deliverupon the request of the Collateral Agent, reasonably promptly assemble, store and cause keep all or any part of the Subject Issuers Collateral as directed by the Collateral Agent and make it available at a place designated by the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orCollateral Agent which is, in the opinion Collateral Agent’s opinion, reasonably convenient to the Collateral Agent and such U.S. Loan Party, whether at the premises of such U.S. Loan Party or otherwise, it being understood that such U.S. Loan Party’s obligation so to deliver such Collateral is of the Secured essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such U.S. Loan Party of such obligation; (ii) to the extent permitted by applicable Law, enter, with or without process of law and without breach of the peace, any premise where any of the Collateral is or may be located, and without charge or liability to any U.S. Loan Party, desirable to register seize and remove such Collateral under from such premises; (iii) have access to and use such U.S. Loan Party’s books and records relating to the provisions Collateral; and (iv) prior to the disposition of the Securities Actsuch Collateral, and to cause the registration statement relating thereto to become effective and to remain effective store or transfer it without charge in or by means of any storage or transportation facility owned or leased by such U.S. Loan Party, process, repair or recondition it or otherwise prepare it for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto disposition in any manner and to the related prospectuses whichextent the Collateral Agent deems appropriate and, in the opinion connection with such preparation and disposition, use without charge any Intellectual Property, Computer Hardware or technical process used by such U.S. Loan Party. The Collateral Agent may also render any or all of the Secured Collateral unusable at any U.S. Loan Party, are necessary ’s premises and may dispose of such Collateral on such premises without liability for rent or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;costs.
(iie) use its best efforts to execute If any Event of Default has occurred and deliveris continuing, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws Agent, instead of exercising the power of sale conferred upon it pursuant to this Section 5.03, may proceed by a suit or Blue Sky laws suits at law or in equity to foreclose the Security Interests and to obtain all necessary approvals from relevant Governmental Authorities for the sale of sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction, and may in addition institute and maintain such suits and proceedings as requested the Collateral Agent may deem appropriate to protect and enforce the rights vested in it by the Secured Party;this Agreement.
(iiif) cause If any Event of Default has occurred and is continuing, the Subject Issuers Collateral Agent shall, to make available the extent permitted by applicable Law, without notice to their respective security holdersany U.S. Loan Party or any party claiming through any U.S. Loan Party, as soon as practicable, an earnings statement which will satisfy without regard to the provisions solvency or insolvency at such time of Section 11(a) any Person then liable for the payment of any of the Securities Act; and
U.S. Finance Obligations, without regard to the then value of the Collateral and without requiring any bond from any complainant in such proceedings, be entitled as a matter of right to the appointment of a receiver or receivers (iv) do or cause to be done all such other acts and things as who may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale Collateral Agent) of the Collateral or any part thereof thereof, and of the profits, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to the entry of an order directing that the profits, revenues and other income of the property constituting the whole or any part of the Collateral be segregated, sequestered and impounded for the benefit of the Collateral Agent and the Secured Parties, and each U.S. Loan Party irrevocably consents to the appointment of such receiver or receivers and to the entry of such order.
(g) Each U.S. Loan Party agrees, to the extent it may lawfully do so, that it will not at any time in compliance with applicable lawany manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, moratorium, turnover or redemption Law, or any Law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force which may delay, prevent or otherwise affect the performance or enforcement of this Agreement, and each U.S. Loan Party hereby waives all benefit or advantage of all such Laws. Each Pledgor acknowledges U.S. Loan Party covenants that there is no adequate remedy at law for failure by it will not hinder, delay or impede the execution of any power granted to comply with the provisions Collateral Agent, the Administrative Agent or any other Secured Party in any Finance Document.
(h) Each U.S. Loan Party, to the extent it may lawfully do so, on behalf of itself and all who claim through or under it, including, without limitation, any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or pursuant to judicial proceedings or under any foreclosure or any enforcement of this Section and that such failure would not be adequately compensable in damagesAgreement, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges consents and agrees that all of the Collateral may at any such sale be offered and sold as an entirety.
(i) Each U.S. Loan Party waives, to the extent permitted by Law, presentment, demand, protest and any notice of any kind (except the notices expressly required hereunder or in exercising the other Finance Documents) in connection with this Agreement and any rights under or action taken by the Collateral Agent with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Security Agreement (Masonite International Corp), Security Agreement (Masonite International Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party after default under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash, if any, then held by it as Collateral and apply it as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may reasonably deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (a) to restrict the prospective bidders on or purchasers of any of the Pledged Equity Interests to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Equity Interests, (b) to cause to be placed on certificates for any or all of the Pledged Equity Interests or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933, as amended, and may not be disposed of in violation of the provision of said Act, and (c) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent reasonably deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Obligor will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent reasonably deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorObligor which may be waived, and each Pledgor hereby waives (Obligor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice Administrative Agent giving the notice required to be given pursuant to Section 9. In the case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Notwithstanding the bidders and prospective purchasers to those who will represent foregoing, the parties hereto acknowledge and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or exercise of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained remedies set forth in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateralany Pledged Equity Interests issued by any Issuer that is a Foreign Subsidiary is subject to, and may be made only in accordance with, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any applicable laws of the Collateraljurisdiction where such Issuer is incorporated.
Appears in 2 contracts
Sources: Credit Agreement (Foot Locker Inc), Credit Agreement (Foot Locker Inc)
Remedies Upon Event of Default. Upon the occurrence of a Default and the continuance thereof, in addition to any and all other rights and remedies that the Secured Party may then have hereunder, under the Uniform Commercial Code as enacted in the State of Texas (a) If an Event of Default shall have occurred and be continuingthe "Code"), or otherwise, the Secured Party may exercise (at its option may, subject to any limitation or cause its agents to exercise) restriction imposed by any applicable bankruptcy, insolvency, or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingdebtor-relief law, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect after notification required pursuant to any Collateral andSection 3.03 hereof, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of, at the Pledgor's principal place of an Equity Interest in any Regulated Subsidiary shall be subject to business, or elsewhere, as chosen by the Secured Party s or the relevant Pledgor s obtainingParty, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorAssets, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall may be given to the relevant Pledgor(s) as (and if) required a unit or in parcels, by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty public or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgorprivate proceedings, and including in such license access to all media in which any by way of the licensed items may be recorded one or stored and to all computer software and programs used for the compilation or printout thereof. The use of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
more contracts (f) Each Pledgor hereby acknowledges it being agreed that the sale by of any part of the Assets shall not exhaust the Secured Party Party's power of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it sale, but sales may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt until all of the Assets have been sold or until the Obligations have been paid in full), and at any such sale it shall not be necessary to sell exhibit the Assets; (ii) reduce its claim to judgment, foreclose, or otherwise enforce its security interest in all or any part of the Collateral by any available judicial procedure; (iii) with the consent of the Pledgor, retain the Collateral in complete satisfaction of the Obligations whenever the circumstances are such that the Secured Party is entitled to do so under the Code, provided only that the Secured Party comply with all applicable procedural requirements imposed by the Code; (iv) apply by appropriate judicial proceedings for appointment of a receiver for the Collateral, or any part thereof; (v) buy the Collateral at any public sale; and (vi) buy the Collateral at any private placementsale if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations. The Secured Party shall be entitled to apply the proceeds of any distribution, restricting sale, or other disposition of the bidders Collateral in the following order: first, to the payment of all of its reasonable expenses incurred as a result of the Pledgor's Default, including, but not limited to, holding and prospective purchasers to those who will represent preparing the Collateral, or any part thereof, for sale or other disposition, in arranging for such sale or other disposition, and agree that they are purchasing for investment only in actually selling the same; and not for distributionsecond, toward payment of the Obligations in such order and manner as the Secured Party, in its discretion, may deem advisable. In doing soExcept in the case of clause (iii) above, the Secured Party may solicit offers shall remit to buy the Collateral or Pledgor any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateralsurplus. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed proceeds are not sufficient to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of Obligations in full, the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or Pledgor shall remain personally liable for any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or deficiency with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralthereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Medsolutions Inc), Asset Purchase Agreement (Medsolutions Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 14 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Collateral Secured Obligations in full, sell the Collateral, in its entirety or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Secured Party is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Secured Party deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Secured Party deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any Pledgor which may be waived, and the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The notice (if any) of such sale required by Section 9 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof, but the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one not incur any liability in case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be deemed sold upon like notice. The Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to be a commercially reasonable method of disposing of foreclose the Security Interests and sell the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all , or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Pledge Agreement (Horizon Medical Products Inc), Pledge Agreement (Horizon Medical Products Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent, upon being instructed to exercise) any or do so by the Required Lenders, may, in addition to all of the other rights and remedies available granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the Secured Party may exercise
right to give instructions or a notice of sole control under an Account Control Agreement): (i) exercise on behalf of the Secured Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of law) to or upon any Credit Party or any other Person (all of which demands and/or notices are hereby waived by each Credit Party), (A) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 5.04, (B) give notice and take sole possession and control of all amounts on deposit in or credited to any Deposit Account or Securities Account pursuant to the related Account Control Agreement and apply all such funds as specified in Section 5.04 and (C) if there shall be no such cash, Liquid Investments or other amounts or if such cash, Liquid Investments and other amounts shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonablesatisfactory.
(b) If any Event of Default has occurred and is continuing, irrespective the Collateral Agent shall give each Credit Party not less than 10 days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in Section 9-613 of the UCC, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Credit Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Credit Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Credit Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be made retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice.
(d) For the purpose of enforcing any and all rights and remedies under this Agreement, the Collateral Agent may, if any Event of Default has occurred and is continuing, (i) require each Credit Party to, and each Credit Party agrees that it will, at its expense and upon the request of the Collateral Agent, forthwith assemble, store and keep all or any part of the Collateral as directed by the Collateral Agent and make it available at a place designated by the Collateral Agent which is, in the Collateral Agent’s opinion, reasonably convenient to the Collateral Agent and such Credit Party, whether at the time premises of such Credit Party or otherwise, it being understood that such Credit Party’s obligation so to deliver the Collateral is of the essence of this Agreement and place that, accordingly, upon application to which it was so adjourned. To a court of equity having jurisdiction, the maximum Collateral Agent shall be entitled to a decree requiring specific performance by such Credit Party of such obligation; (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against premise where any of the Secured Party arising because the price at which Collateral is or may be located, and without charge or liability to any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public saleCredit Party, even if the Secured Party accepts the first offer received seize and does not offer remove such Collateral from such premises; (iii) have access to more than one offeree. The Secured Party may disclaim and use such Credit Party’s books and records relating to the Collateral; and (iv) prior to the disposition of the Collateral, store or transfer it without charge in or by means of any warrantystorage or transportation facility owned or leased by such Credit Party, as process, repair or recondition it or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Collateral Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of use without charge any Intellectual Property or technical process used by such sale Credit Party. The Collateral Agent may also render any or other disposition.
(c) If the Secured Party sells any all of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party unusable at any Credit Party’s premises and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay may dispose of such Collateral on such premises without liability for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale rent or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14costs.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, if any Event of Default has occurred and is continuing:
(i) the Collateral Agent may, subject to the express terms of any valid and enforceable restriction in favor of a Person who is not a Group Company that prohibits, or requires any consent or establishes any other conditions for, an assignment thereof, license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Patents, Trademarks or Copyrights included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its sole discretion determine;
(ii) the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time, enforce (and shall have the exclusive right to enforce) against any Licensee or sublicensee all rights and remedies of any Credit Party in, to and under any License and take or refrain from taking any action under any provision thereof, and each Pledgor Credit Party hereby releases the Collateral Agent and each of the Secured Parties from, and agrees thatto hold the Collateral Agent and each of the Secured Parties free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(iii) upon request by the Collateral Agent, each Credit Party will use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor or sublicensor of each License to effect the assignment of all of such Credit Party’s right, title and interest thereunder to the Collateral Agent or its designee and will execute and deliver to the Collateral Agent a power of attorney, in form and substance reasonably satisfactory to the Collateral Agent, for the implementation of any lease, assignment, License, sublicense, grant of option, sale or other disposition of a Patent, Trademark or Copyright; and
(iv) the Collateral Agent may direct each Credit Party to refrain, in which event each such Credit Party shall refrain, from using or practicing any Trademark, Patent or Copyright in any manner whatsoever, directly or indirectly, and shall, if requested by the Collateral Agent, change such Credit Party’s name to eliminate therefrom any use of any Trademark and will execute such other and further documents as the Collateral Agent may request to further confirm this change and transfer ownership of the Trademarks, Patents, Copyrights and registrations and any pending applications therefor to the Collateral Agent.
(f) In the event of any disposition following the occurrence and during the continuation continuance of an any Event of DefaultDefault of any Patent, Trademark or Copyright pursuant to this Article V, each Credit Party shall supply its know-how and expertise relating to the manufacture and sale of the products or services bearing Trademarks or the products, services or works made or rendered in connection with or under Patents, Trademarks or Copyrights, and its customer lists and other records relating to such Patents, Trademarks or Copyrights and to the distribution of said products, services or works, to the Collateral Agent.
(g) If any Event of Default has occurred and is continuing, the Secured Party mayCollateral Agent, subject instead of exercising the power of sale conferred upon it pursuant to this Section 5.02, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction, and may in addition institute and maintain such suits and proceedings as the Collateral Agent may deem appropriate to protect and enforce the rights vested in it by this Agreement.
(h) If any Event of Default has occurred and is continuing, the Collateral Agent shall, to the extent permitted by applicable law, without notice to any Credit Party or any party claiming through any Credit Party, without regard to the solvency or insolvency at such time of any Person then liable for the payment of any of the Finance Obligations, without regard to the then value of the Collateral and without requiring any bond from time any complainant in such proceedings, be entitled as a matter of right to time attempt the appointment of a receiver or receivers (who may be the Collateral Agent) of the Collateral or any part thereof, and of the profits, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to sell all the entry of an order directing that the profits, revenues and other income of the property constituting the whole or any part of the Collateral by a private placementbe segregated, restricting sequestered and impounded for the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion benefit of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of Agent and the Secured PartyParties, and each Credit Party irrevocably consents to the appointment of such Pledgor will, at its own expense:receiver or receivers and to the entry of such order.
(i) use its best efforts Each Credit Party agrees, to execute and deliverthe extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force which may delay, prevent or otherwise affect the performance or enforcement of this Agreement, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, each Credit Party hereby waives all benefit or advantage of all such instruments and documentslaws. Each Credit Party covenants that it will not hinder, and delay or impede the execution of any power granted to do so the Collateral Agent, the Administrative Agent or cause to be done all such any other acts and things, as may be necessary or, Secured Party in the opinion of the Secured any Finance Document.
(j) Each Credit Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses whichextent it may lawfully do so, in the opinion on behalf of the Secured Partyitself and all who claim through or under it, are necessary including, without limitation, any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or pursuant to judicial proceedings or under any foreclosure or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions enforcement of this Section and that such failure would not be adequately compensable in damagesAgreement, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges consents and agrees that all of the Collateral may at any such sale be offered and sold as an entirety.
(k) Each Credit Party waives, to the extent permitted by law, presentment, demand, protest and any notice of any kind (except the notices expressly required hereunder or in exercising the other Finance Documents) in connection with this Agreement and any rights under or action taken by the Collateral Agent with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, Kreos may take any of the Secured Party following actions:
(a) Kreos may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Kreos may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sellincluding provisions that require a secured party to act in a commercially reasonable manner, (i) apply the cash, if any, then held by it as Collateral hereunder, for the purposes and in the manner specified in Section 18, and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Collateral Obligations in full, sell the Collateral, or any part thereof in or component thereof, at one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, sales for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Kreos may reasonably deem commercially reasonable, irrespective satisfactory.
(b) Kreos may require Guarantor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party Collateral and make it available to sell or otherwise dispose Kreos at a place to be designated by Kreos which is reasonably convenient. Any holder of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Obligation may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public sale (and, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same absolutely, to use and apply all free from any right or claim of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salewhatsoever kind. Upon any sale of Collateral by such sale, Kreos shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of Guarantor.
(c) Unless the Collateral to be sold is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Kreos shall give Guarantor at least ten (10) business days’ prior written notice of its intention to make any such public or private sale. Guarantor agrees that such notice constitutes “reasonable notification” within the part meaning of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time UCC. Such notice in the future have under case of a public sale shall state the time and place fixed for such sale. Such notice in the case of a private sale or disposition shall state the time after which any rule private sale or other intended disposition is to be made.
(d) Any such public sale shall be held at such time or times within ordinary business hours and at public or private place or places as Kreos may fix in the notice of law such sale. At any public or statute now existing private sale, the Collateral may be sold in one lot as an entirety or hereafter enactedin separate parcels, as Kreos may reasonably determine. The Secured Party Kreos shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of such notice. Kreos may, without notice of sale having been given. The Secured Party may 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 placed fixed thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Kreos until the selling price is paid by the purchaser thereof, but Kreos shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice.
(e) Kreos, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(f) To enforce the bidders and prospective purchasers provisions of this Agreement, Kreos is empowered to those who will represent and agree that they are purchasing for investment only and not for distributionrequest the appointment of a receiver from any court of competent jurisdiction. In doing so, The receiver shall have the Secured Party may solicit offers power to buy dispose of the Collateral in any manner lawful in the jurisdiction in which his appointment is confirmed, including the power to conduct a public or any part thereof for cash, from a limited number private sale of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit Kreos may bid at any such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralpublic or private sale.
(g) GUARANTOR ACKNOWLEDGES THAT THE APPOINTMENT OF A RECEIVER IS INTEGRAL TO KREOS’S REALIZATION OF THE VALUE OF THE COLLATERAL, THAT THERE IS NO ADEQUATE REMEDY AT LAW FOR FAILURE BY GUARANTOR TO COMPLY WITH THE PROVISIONS OF THIS SECTION AND THAT SUCH FAILURE WOULD NOT BE ADEQUATELY COMPENSABLE IN DAMAGES, AND THEREFORE AGREES THAT THE AGREEMENTS CONTAINED IN THIS SECTION MAY BE SPECIFICALLY ENFORCED.
(h) All rights and remedies contained herein shall be separate and cumulative and in addition to all other rights and remedies available to a secured party under applicable law, and the exercise of one shall not in any way limit or prejudice the exercise of any other such rights or remedies.
(i) If the Secured Party at any time when Kreos shall determine to exercise its right to sell all or any portion part of the Collateral Pledged Investment Property pursuant to subsection (a)(ii) of this SectionSection 16, each Pledgor agrees that, upon request Guarantor recognizes that Kreos may be unable to effect a public sale of the Secured PartyPledged Investment Property by the reason of certain prohibitions contained in the Securities Act, or other applicable state or federal laws, and Kreos may therefore resort to one or more private arm’s-length sales thereof to a restricted group of purchasers. Guarantor agrees that any such Pledgor willprivate sales may be at prices and on other terms less favorable to the seller than if sold at public sales and that such private arm’s-length sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. Kreos shall sell all or any part of the Pledged Investment Property at a price which it deems commercially reasonable under the circumstances. Kreos shall be under no obligation to delay a sale of any of the Pledged Investment Property for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act, at its own expense:
(i) or such other applicable laws, even if the issuer would agree to do so. Subject to the foregoing, Kreos agrees that any sale of the Pledged Investment Property shall be made in a commercially reasonable manner, and Guarantor agrees to use its best commercially reasonable efforts to cause the issuer or issuers of the Pledged Investment Property contemplated to be sold, to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliverall at Guarantor’s expense, all such instruments and documents, and to do so or cause to be done all such other acts and things, things as may be necessary or, in advisable to exempt the opinion of the Secured Party, desirable to register such Collateral Pledged Investment Property from registration under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments to such instruments and supplements thereto and to the related prospectuses documents which, in the opinion of the Secured PartyKreos, are necessary or desirableadvisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;, and other applicable law.
(iij) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion The receipt by Kreos of the Secured Party, desirable purchase money paid at any such sale made by it shall be a sufficient discharge therefor to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale any purchaser (other than Kreos) of the Collateral, or any portion thereof, sold as requested by aforesaid; and no such purchaser (or his or its representatives or assigns) (other than Kreos), after paying such purchase money and receiving such receipt, shall be bound to see to the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions application of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral purchase money or any part thereof or in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law any manner whatsoever be answerable for failure by it any loss, misapplication or nonapplication of any such purchase money, or any part thereof, or be bound to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect inquire as to the Collateralauthorization, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electsnecessity, and each Pledgor waives any right to require the marshaling expediency or regularity of any of the Collateralsuch sale.
Appears in 2 contracts
Sources: Loan Agreement (Albireo Pharma, Inc.), Guaranty and Security Agreement (Albireo Pharma, Inc.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Security Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Security Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Security Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Security Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (ii) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Security Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Grantor will execute and deliver such documents and take such other action as the Collateral sold at Security Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Security Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorGrantors which may be waived, and each Pledgor hereby waives (Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Security Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Security Agent may determine. The Security Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Security 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Security Agent until the selling price is paid by the purchaser thereof, but the Security Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Security Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Iomega Corp), Pledge Agreement (Iomega Corp)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Party’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors Grantors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 13 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sGrantor(s) as (and if) required by Section 1415.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor Grantor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgorthe Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided provided, however, that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor each Grantor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Loan Implementation Agreement (Hoku Scientific Inc), Loan Implementation Agreement (Tianwei New Energy Holdings Co., LTD)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent may, in addition to exercise) any or all of the other rights and remedies available granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the Secured Party may exercise
right to give instructions or a notice of sole control to an issuer subject to an Issuer Control Agreement): (i) exercise on behalf of the Secured Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of law) to or upon any Credit Party or any other Person (all of which demands and/or notices are hereby waived by each Credit Party), (A) apply all cash, if any, then held by it as Collateral as specified in Section 6.07 and (B) if there shall be no such cash or if such cash shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels (which need not be in round lots) at public or private salesale or at broker’s board or on any securities exchange, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonablereasonably satisfactory.
(b) If any Event of Default has occurred and is continuing, irrespective the Collateral Agent shall give each Credit Party not less than ten days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof being sold, will first be offered for sale, (iii) in the case of a private sale, state the day after which such sale may be consummated, (iv) contain the information specified in Section 9-613 of the UCC, (v) be authenticated and (vi) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Credit Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Credit Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Credit Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or reasonably advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary bankers hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy be retained by the Collateral or any part thereof for cash, from a limited number of investors reasonably believed Agent until the selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested purchaser thereof, but the Collateral Agent shall not incur any liability in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one case of the offers shall be deemed failure of such purchaser to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of take up and pay for the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orsold and, in the opinion case of the Secured Partyany such failure, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to may again be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize sold upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collaterallike notice.
Appears in 2 contracts
Sources: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party :
(a) The Buyer may exercise (in respect of the Collateral, in addition to any other rights and remedies provided for herein or cause its agents otherwise available to exercise) any or it, all of the rights and remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party upon default under the UCC Code (whether or not in effect in the jurisdiction where such rights are exercisedCode applies to the affected Collateral), and also may (i) take absolute control of the Collateral, including, without limitation, transfer into the Buyer's name or into the name of its nominee or nominees (to the extent the Buyer has not theretofore done so) and thereafter receive, for the benefit of the Buyer, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, (ii) all the powers given by section 30 require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Conveyancing Act 1983 Buyer forthwith, assemble all or part of Bermuda (its respective Collateral as directed by the Conveyancing Act ) with respect Buyer and make it available to the Buyer at a place or places to be designated by the Buyer that is reasonably convenient to both parties, and the Buyer may enter into and occupy any premises owned or leased by such Grantor where the Collateral and, or any part thereof is located or assembled for a reasonable period in addition, order to effectuate the Secured Party mayBuyer's rights and remedies hereunder or under law, without being required obligation to give any noticesuch Grantor in respect of such occupation, and (iii) without notice except as herein provided specified below and without any obligation to prepare or as may be required by mandatory provisions of lawprocess the Collateral for sale, sell, or otherwise dispose of (A) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s Buyer's offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Buyer may deem commercially reasonable and/or (B) lease, license or dispose of the Collateral or any part thereof upon such terms as the Buyer may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining. Each Grantor agrees that, to the extent necessary under applicable notice of sale or any other disposition of its respective Collateral shall be required by law, at least ten (10) days' notice to such Grantor of the prior approval time and place of such any public sale or the time after which any private sale or other disposition by the Governmental Authority having jurisdiction with respect of its respective Collateral is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers The Buyer shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale or other disposition of any Collateral regardless of notice of sale having been given. The Secured Party Buyer may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Each Grantor hereby waives any claim claims against the Secured Party Buyer arising because by reason of the fact that the price at which any its respective Collateral may have been sold at such a private sale was less than the price that which might have been obtained at a public salesale or was less than the aggregate amount of the Obligations, even if the Secured Party Buyer accepts the first offer received and does not offer such Collateral to more than one offeree, and waives all rights that such Grantor may have to require that all or any part of such Collateral be marshalled upon any sale (public or private) thereof. The Secured Party Each Grantor hereby acknowledges that (i) any such sale of its respective Collateral by the Buyer shall be made without warranty, (ii) the Buyer may specifically disclaim any warrantywarranties of title, as to title possession, quiet enjoyment or as to any other matter, in connection with such sale or other dispositionthe like, and its doing so (iii) such actions set forth in clauses (i) and (ii) above shall not be considered adversely to affect effect the commercial reasonableness of any such sale of Collateral. In addition to the foregoing, (1) upon written notice to any Grantor from the Buyer, such Grantor shall cease any use of the Intellectual Property or other disposition.
any trademark, patent or copyright similar thereto for any purpose described in such notice; (c2) If the Secured Party sells Buyer may, at any time and from time to time, upon 10 days' prior notice to such Grantor, license, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any of the Collateral upon creditIntellectual Property, throughout the Pledgors will be credited only with payment actually made by universe for such term or terms, on such conditions, and in such manner, as the purchaser, received by the Secured Party and applied Buyer shall in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject its sole discretion determine to the same rights and duties set forth herein.
(d) Notice of extent consistent with any restrictions or conditions imposed upon such sale Grantor with respect to such Intellectual Property by license or other disposition shall be given contractual arrangement; and (2) the Buyer may, at any time, pursuant to the relevant Pledgor(s) as authority granted in Section 6 hereof (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only authority being effective upon the occurrence and during the continuation continuance of an Event of Default; provided that ), execute and deliver on behalf of such Grantor, one or more instruments of assignment of the Intellectual Property (or any licenseapplication or registration thereof), sublicense in form suitable for filing, recording or other transaction entered into by the Secured Party registration in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcountry.
(fb) Each Pledgor hereby acknowledges that the sale Any cash held by the Secured Party Buyer as Collateral and all Cash Proceeds received by the Buyer in respect of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky sale of or collection from, or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another mannerrealization upon, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral may, in the discretion of the Buyer, be held by a private placementthe Buyer as collateral for, restricting and/or then or at any time thereafter applied (after payment of any amounts payable to the bidders and prospective purchasers Buyer pursuant to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing soSection 8 hereof) in whole or in part by the Buyer against, the Secured Party may solicit offers to buy the Collateral all or any part thereof for cash, from a limited number of investors reasonably believed the Obligations in such order as the Buyer shall elect. Any surplus of such cash or Cash Proceeds held by the Secured Party Buyer and remaining after the indefeasible payment in full in cash of all obligations under the Note (together with any matured indemnification obligations as of the date of such payment, but excluding any inchoate or unmatured contingent indemnification obligations) shall be paid over to whomsoever shall be institutional investors 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 Buyer is legally entitled, each Grantor shall be liable for the deficiency, together with interest thereon at the highest rate specified in any of the applicable Note Transaction Documents for interest on overdue principal thereof or such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees, costs, expenses and other client charges of any attorneys employed by the Buyer to collect such deficiency.
(d) Each Grantor hereby acknowledges that if the Buyer complies with any applicable state, provincial, 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 accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing disposition of the Collateral.
(ge) If the Secured Party The Buyer shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation required to marshal any Collateral present or future collateral security (including, but not limited to, this Agreement and may in its absolute discretion realize upon the Collateral 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 order to any extent it so electsparticular order, and all of the Buyer'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 each Pledgor waives Grantor lawfully may, such Grantor hereby agrees that it will not invoke any right law relating to require the marshaling marshalling of collateral which might cause delay in or impede the enforcement of the Buyer's rights under this Agreement or under any other instrument creating or evidencing any of the CollateralObligations 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, such Grantor hereby irrevocably waives the benefits of all such laws.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Vringo Inc), Merger Agreement (Vringo Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Indenture Trustee may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality Holders of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Notes all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral applicable law and, in addition, the Secured Party Indenture Trustee may, without being required to give any notice, except as herein provided in the Indenture or as may be required by mandatory provisions of law, sell(i) apply all cash, if any, then held by it as all or otherwise dispose part of the Collateral as specified in Section 5.3 and (ii) if there shall be no such cash or if such cash shall be insufficient to pay all the Obligations in full, sell the Collateral (including each applicable Funding Agreement) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Indenture Trustee may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Holder may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Trust will execute and deliver such documents and take such other action as the Indenture Trustee deems 75 necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Indenture Trustee shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorTrust which may be waived, and each Pledgor hereby waives (the Trust, to the extent permitted by law) , specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedlaw. The Secured Party notice (if any) of such sale shall (A) in the case of a public sale, state the time and place fixed for such sale, and (B) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Indenture Trustee may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Indenture Trustee may determine. The Indenture Trustee shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Indenture 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Indenture Trustee until the selling price is paid by the purchaser thereof, but the Indenture Trustee shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Indenture Trustee, instead of exercising the power of sale conferred upon it in the Indenture, may proceed by a private placementsuit or suits at law or in equity to foreclose a Security Interest and sell any Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Standard Indenture Terms (Allstate Life Insurance Co), Indenture Agreement (Allstate Life Insurance Co)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Lender all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, but only if an Acceleration Default has occurred and is continuing, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Collateral Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (B) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the United States Securities Act of 1933, as amended, and may not be disposed of in violation of the provision of said Act, and (C) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Collateral Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Lien Grantor will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorLien Grantor which may be waived, and each Pledgor hereby waives (the Lien Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Collateral Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Collateral Agreement (Synutra International, Inc.), Loan Agreement (Synutra International, Inc.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or on behalf of itself and the Lenders all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Administrative Agent may (i) withdraw all cash, if any, in the Collateral Account and investments made with amounts on deposit in the Collateral Account, and apply such monies, investments and other cash, if any, then held by it as Collateral as specified in Section 10 hereof and (ii) if there shall be no such monies, investments or cash or if such monies, investments or cash shall be insufficient to pay all the Secured Party mayObligations in full, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Administrative Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Each Grantor will execute and deliver such documents and take such other action as the Administrative Agent deems reasonably necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof(without warranty). Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any Pledgor, and each Pledgor hereby waives (to Grantor. To the extent permitted by law) , each Grantor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice of such sale shall be given to the applicable Grantor ten (10) days prior to such sale and (A) in case of a public sale, state the time and place fixed for such sale, and (B) in the case of a private sale, state the day after which sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. The Grantors shall remain liable for any deficiency.
(b) For the purpose of enforcing any and all rights and remedies under this Agreement, the Administrative Agent may if an Event of Default has occurred and is continuing (i) require each Grantor to, and each Grantor agrees that it will, at its expense and upon the request of the Administrative Agent, forthwith assemble all or any part of the Collateral as directed by the Administrative Agent and make it available at a place designated by the Administrative Agent which is, in the Administrative Agent's opinion, reasonably convenient to the Administrative Agent and such Grantor, whether at the premises of such Grantor or otherwise, (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against premise where any of the Secured Party arising because Collateral is or may be located and, without charge or liability to the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public saleAdministrative Agent, even if the Secured Party accepts the first offer received seize and does not offer remove such Collateral from such premises, (iii) have access to more than one offeree. The Secured Party may disclaim and use such Grantor's books and records relating to the Collateral and (iv) prior to the disposition of the Collateral, store or transfer such Collateral without charge in or by means of any warrantystorage or transportation facility owned or leased by such Grantor, as process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Administrative Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of use without charge any Trademark, trade name, Copyright, Patent or technical process used by such sale or other dispositionGrantor.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing,
(i) the Administrative Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Patents or Trademarks included in the Secured Party mayCollateral throughout the world for such term or terms, subject to applicable lawon such conditions and in such manner as the Administrative Agent shall in its sole discretion determine;
(ii) the Administrative Agent may (without assuming any obligations or liability thereunder), at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all rights and remedies of any Grantor in, to and under any Patent Licenses or Trademark Licenses and take or refrain from taking any part action under any thereof, provided, that no such actions shall result in the failure of such Patent Licenses or Trademark Licenses to remain in compliance with all Applicable Law, and each Grantor hereby releases the Administrative Agent and each of the Collateral Lenders from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto except with respect to the gross negligence or willful misconduct of the Administrative Agent or the Lenders; and
(iii) upon request by the Administrative Agent, each Grantor will execute and deliver to the Administrative Agent a private placementpower of attorney, restricting in form and substance satisfactory to the bidders and prospective purchasers to those who will represent and agree that they are purchasing Administrative Agent, for investment only and not for distributionthe implementation of any lease, assignment, license, sublicense, grant or option, sale or other disposition of a Patent or Trademark. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request Grantor shall supply its know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so Patents or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Trademarks and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 2 contracts
Sources: Security Agreement (Acc Corp), Security Agreement (Acc Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall will have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under and remedies this Agreement and the UCC (whether or not the UCC is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral in the manner specified in Section 8, and (ii) if there will be no such cash or otherwise dispose of if such cash will be insufficient to pay all the Collateral obligations in full, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective satisfactory. Secured Party may require Debtor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Collateral and make it available to Secured Party at a place to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the designated by Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; which is reasonably convenient. Secured Party and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant will have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall will hold the property Collateral so sold absolutely absolutely, free from any claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of Debtor. Debtor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party shall not At any such sale the Collateral may be obliged to make any sale of Collateral regardless of notice of sale having been given. The sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party will not be obligated to make such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party will not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders security interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Security Agreement (Zurvita Holdings, Inc.), Security Agreement (Omnireliant Holdings, Inc.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under Banks and the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Agents all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell satisfactory. Any Bank or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Agent may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Pledgor will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorPledgor which may be waived, and each Pledgor hereby waives (Pledgor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Notwithstanding any provision of this Agreement to the Collateral pursuant to this Sectioncontrary, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause enforcement of the Subject Issuers security interest granted hereby in the Pledged Securities and the directors exercise of any right or remedy with respect to any of the shares of Pledged Securities and officers thereof the grant of any pledge pursuant to execute and deliverSection 5(c) shall be subject to prior approval of the various automobile franchisors with whom the Pledgor or any of its Affiliates has franchise agreements pursuant to which such enforcement, all or exercise of any remedy or right, or grant, without prior approval from such instruments and documents, and to do so or cause to be done all such other acts and things, as automobile franchisors may be necessary or, result in the opinion termination of the Secured Party, desirable to register one or more of such Collateral under the provisions of the Securities Act, franchise agreements and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers enforcement of the security interest granted hereby in the shares of Atlantic Auto Finance Corporation pledged hereunder and the directors and officers thereof exercise of any right or remedy with respect thereto shall be subject to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion prior consent of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance requisite financing parties with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its whom Atlantic Auto Finance Corporation has financing agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect set forth on Schedule IV hereto to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling such enforcement or exercise of any remedy or right without prior approval from such financing parties may result in a default under one or more of the Collateralsuch agreements.
Appears in 2 contracts
Sources: Credit Agreement (United Auto Group Inc), Pledge Agreement (United Auto Group Inc)
Remedies Upon Event of Default. (a) If Upon the occurrence of an Event of Default shall have occurred and be continuingat any time thereafter during its continuance, the Secured Party may exercise any one or more of the following rights or remedies: (or cause its agents to exercisea) exercise all voting and other rights as a holder of the Collateral; (b) exercise and enforce any or all of the rights and remedies available upon default to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not Uniform Commercial Code as in effect from time to time in the jurisdiction where such rights are exercised) State of New Jersey, including the right to offer and (ii) all sell the powers given by section 30 Collateral privately to purchasers who will agree to take the Collateral for investment and not with a view to distribution and who will agree to the imposition of restrictive legends on the Conveyancing certificates representing the Collateral, and the right to arrange for a sale which would otherwise qualify as exempt from registration under the Securities Act 1983 of Bermuda (the Conveyancing Act ) with respect 1933; and if notice to Obligors of any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose intended disposition of the Collateral or any part thereof other intended action is required by law in one or more parcels at public or private salea particular instance, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary notice shall be subject deemed commercially reasonable if given at least ten (10) calendar days prior to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval date of such sale intended disposition or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiaryaction; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of (c) exercise or enforce any or all other rights or remedies available to Secured Party in the Loan Agreement or any other Loan Document or by law or agreement against the Collateral, against any Obligor or against any other person or property. For clarity, none of the Collateral at is registered under any such federal or state securities law, and any sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price disposition of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, must be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damagesEACH OBLIGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS SECURED PARTY AS THE PROXY AND ATTORNEY-IN-FACT OF SUCH OBLIGOR WITH RESPECT TO THE COLLATERAL WITH THE RIGHT, and therefore agrees that its agreements contained in this Section may be specifically enforcedONLY UPON AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, TO TAKE ANY OF THE FOLLOWING ACTIONS: (I) TRANSFER AND REGISTER IN ITS NAME OR IN THE NAME OF ITS NOMINEE THE WHOLE OR ANY PART OF THE COLLATERAL, (II) VOTE THE SHARES, WITH FULL POWER OF SUBSTITUTION TO DO SO, (III) RECEIVE AND COLLECT ANY DIVIDEND OR OTHER PAYMENT OR DISTRIBUTION IN RESPECT OF OR IN EXCHANGE FOR THE COLLATERAL OR ANY PORTION THEREOF, TO GIVE FULL DISCHARGE FOR THE SAME AND TO INDORSE ANY INSTRUMENT MADE PAYABLE TO SUCH OBLIGOR FOR SAME, (IV) EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE COLLATERAL WOULD BE ENTITLED (INCLUDING, WITH RESPECT TO THE SHARES, GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS), AND (V) TAKE ANY ACTION AND TO EXECUTE ANY INSTRUMENT WHICH SECURED PARTY MAY DEEM NECESSARY OR ADVISABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the CollateralTHE APPOINTMENT OF SECURED PARTY AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE TERMINATION OF THIS AGREEMENT. SUCH PROXY SHALL BE EFFECTIVE, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electsAUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE SHARES OR ANY OFFICER OR AGENT THEREOF). NOTWITHSTANDING THE FOREGOING, and each Pledgor waives any right to require the marshaling of any of the CollateralSECURED PARTY SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO.
Appears in 2 contracts
Sources: Collateral Pledge Agreement (Spar Group Inc), Collateral Pledge Agreement (Spar Group Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Company may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Company may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 12 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Company may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Company may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Company is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (ii) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Company deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Company deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Company shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any Pledgor which may be waived, and the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 8 shall not be obliged to make any sale (1) in case of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale may, without further notice, is to be made at and the time and place to day on which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, or the Secured Party may resell portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the samecase of a private sale, subject to state the same rights and duties set forth herein.
(d) Notice of any day after which such sale or other disposition may be consummated. Any such public sale shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement held at such time or times within ordinary business hours and at such place or places as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to Company may fix in the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 notice of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that sale. At any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.such
Appears in 2 contracts
Sources: Pledge Agreement (Lendingtree Inc), Pledge Agreement (Lendingtree Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Lender may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Lender may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Lender may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Lender may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of if the Collateral so is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and such purchaser thereafter hold the same, absolutely, free from any right or purchasers shall not be obligated to see to the application claim of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofwhatsoever kind. Each The purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of whatsoever kind, including any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights equity or right of redemption, stay or appraisal that it now has or may at any time in the future have under any rule redemption of law or statute now existing or hereafter enactedGrantor. The Secured Party shall not be obliged to make any sale of Collateral regardless of notice of such sale having been given. The Secured Party may adjourn any shall be given to Grantor ten (10) days prior to such sale and (A) in case of a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (B) in the case of a private sale, state the day after which sale may be consummated. At any such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than in one offeree. The Secured Party may disclaim any warrantylot as an entirety or in separate parcels, as Lender may determine. Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to title foreclose the Security Interests and sell the Collateral, or as to any other matterportion thereof, in connection with such sale under a judgment or other disposition, and its doing so decree of a court or courts of competent jurisdiction. Grantor shall not be considered adversely to affect the commercial reasonableness of such sale or other dispositionremain liable for any deficiency.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesAgreement, each Pledgor hereby grants to the Secured Party an irrevocable license Lender may (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgori) require Grantor to, and including in such license 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 Secured Party may be exercised only Grantor agrees that it shall upon the occurrence and during the continuation request of an Event of Default; provided that any licenseLender, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell forthwith assemble all or any part of the Collateral as directed by Lender and make it available at a private placementplace designated by Lender that is, restricting in such Lender’s opinion, reasonably convenient to such Lender and Grantor, and/or (ii) to the bidders extent permitted by Applicable Law, enter, with or without process of law and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one without breach of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or peace, any portion premise where any of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so is or cause to be done all such other acts and things, as may be necessary orlocated and, in the opinion of the Secured Partywithout charge or liability to Lender, desirable to register remove such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for from such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralpremises.
Appears in 2 contracts
Sources: Purchase Money Security Agreement, Purchase Money Security Agreement (Great Basin Scientific, Inc.)
Remedies Upon Event of Default. (a) If Upon the occurrence of an Event of Default shall have occurred and be continuingduring the continuance thereof, the Secured Party may exercise (any one or cause its agents to exercise) any or all more of the rights and remedies available to it (specified in the Credit Agreement or to such agents) under in the Security Documents.
(b) Without limiting the generality Guaranty, and also any one or more of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercisefollowing rights or remedies:
(i) notify the obligor on or issuer of any Collateral or any securities intermediary to make payment to Secured Party of any amounts due or distributable on any Collateral, (ii) receive and keep in its possession or under its control subject to the Security Interest all proceeds of Collateral, except that any money received from the Collateral may, at Secured Party's option, be applied in reduction of the Secured Obligations; (iii) exercise all voting and other rights as a holder of any Collateral; (iv) exercise and enforce any or all rights and remedies available upon default to a secured party under the UCC Uniform Commercial Code, including the right to (whether A) order any securities intermediary to sell any Collateral on any established market or not in effect in over the jurisdiction where such rights are exercisedcounter or to cause any Collateral to be redeemed; (B) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect give any transfer or redemption order to any issuer of Collateral; or (C) offer and sell Collateral and, in addition, the Secured Party may, without being required privately to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of purchasers who will agree to take the Collateral or for investment and not with a view to distribution and who will agree to the imposition of restrictive legends on any part thereof in one or more parcels at public or private salecertificates representing Collateral, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or arrange for a sale which would otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations qualify as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free exempt from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register registration under the Securities Act in order of 1933; and if notice to obtain the maximum possible price for the Collateral. Without limiting the generality Debtor of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation any intended disposition of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashother intended action is required by law in a particular instance, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers notice shall be deemed to be a commercially reasonable method if given at least 10 calendar days prior to the date of disposing of the Collateral.
intended disposition or other action; and (gv) If the exercise or enforce any or all other rights or remedies available to Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the agreement against any Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do against Debtor or cause to be done all such against any other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral person or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralproperty.
Appears in 2 contracts
Sources: Secured Credit Agreement (First Banks, Inc), Secured Credit Agreement (First Banks Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Indenture Trustee may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral applicable law and, in addition, the Secured Party Indenture Trustee may, without being required to give any notice, except as herein provided in the Indenture or as may be required by mandatory provisions of law, sell(i) apply all cash, if any, then held by it as all or otherwise dispose part of the Collateral as specified in Section 5.3 and (ii) if there shall be no such cash or if such cash shall be insufficient to pay all the Obligations in full, sell the Collateral (including each applicable Funding Agreement) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Indenture Trustee may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Holder may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Trust will execute and deliver such documents and take such other action as the Indenture Trustee deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Indenture Trustee shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorTrust which may be waived, and each Pledgor hereby waives (the Trust, to the extent permitted by law) , specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedlaw. The Secured Party notice (if any) of such sale shall (A) in the case of a public sale, state the time and place fixed for such sale, and (B) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Indenture Trustee may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Indenture Trustee may determine. The Indenture Trustee shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Indenture 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Indenture Trustee until the selling price is paid by the purchaser thereof, but the Indenture Trustee shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Indenture Trustee, instead of exercising the power of sale conferred upon it in the Indenture, may proceed by a private placementsuit or suits at law or in equity to foreclose a Security Interest and sell any Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Standard Indenture Terms (Allstate Life Global Funding), Standard Indenture Terms (Allstate Life Global Funding)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party may Administrative Agent may, upon five Business Days’ notice to the Borrowers’ Agent, exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Collateral Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Administrative Agent may, upon five Business Days’ notice to the Borrowers’ Agent, exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Personal Property Collateral and, in addition, the Secured Party Administrative Agent may, without being required upon five Business Days’ notice (which notice shall state the time, date 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 give be made) to the Borrowers’ Agent and subject to any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Administrative Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary such public sale shall be subject to the Secured Party s held at such time or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)times within ordinary business hours. To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Administrative Agent, which may be withheld in its discretion) 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, held at such time or times within ordinary business hours, to use and apply all of or any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. .
(c) Upon any sale of Collateral by the Secured Party Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party Administrative Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party Administrative Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. .
(d) The Secured Party Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. .
(e) To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party Administrative Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(cf) If the Secured Party sells In case any sale of all or any part of the Collateral upon creditis made on credit or for future delivery, the Pledgors will Collateral so sold may be credited only with payment actually made retained by the purchaser, received Administrative Agent until the sale price is paid by the Secured Party purchaser or purchasers thereof, but the Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the CollateralCollateral so sold and, the Secured Party in case of any such failure, such Collateral may resell the samebe sold again, subject to the same rights and duties set forth herein.
(dg) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sGrantor(s) as (and if) required by Section 1411.
(eh) For the purpose of enabling the Secured Party Administrative Agent to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesAgreement, each Pledgor Grantor hereby grants to the Secured Party Administrative Agent, automatically upon the notice by the Administrative Agent of the exercise of remedies to the Grantors pursuant to Article VIII of the Credit Agreement after the occurrence and during the continuation of an Event of Default, an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgorthe Grantors), to use, license or sublicense sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license access to all media in which any of except where the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use grant of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Defaultwill terminate or invalidate such Intellectual Property; provided that any licensethat, sublicense or other transaction entered into by the Secured Party anything in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(fthis Section 9(h) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with contrary notwithstanding, the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor Administrative Agent agrees that, upon on the occurrence and during date the continuation of an Grantors cure such Event of Default, such license to the Secured Party mayAdministrative Agent will immediately terminate upon the cure date, subject to applicable law, from time to time attempt to sell all or but any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed sub-licenses granted by the Secured Party Administrative Agent will remain in full force and effect; provided that such sub-licenses will have terms that are substantially similar to be institutional investors the Grantors’ prior Intellectual Property licenses, and further provided that such sub-licenses (whether exclusive or other accredited investors who might be interested in purchasing non-exclusive) shall explicitly reserve the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its Grantor’s right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, use such Pledgor will, at sub-licensed Intellectual Property in its own expense:business.
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the The foregoing provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect shall apply to Real Property Collateral only to the Collateral, extent permitted by applicable law and the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling provisions of any of the Collateralapplicable Mortgage or other document.
Appears in 2 contracts
Sources: Security Agreement, Security Agreement (LyondellBasell Industries N.V.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 6 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Collateral Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Notes to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any such Pledged Notes, (ii) to cause to be placed on any or all of the Pledged Notes or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Collateral Agent deems necessary or payment advisable in order to comply with said Act or any other law. Each of the purchase price for all or any portion of Pledgors covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any relevant Pledgor which may be waived, and the relevant Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 7 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Collateral Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Gerber Scientific Inc), Credit Agreement (Gerber Scientific Inc)
Remedies Upon Event of Default. (a) If Upon the occurrence and during the continuation of an Event of Default shall have occurred and be continuingDefault, the Secured Party Agent may exercise (or cause its agents exercise, in addition to exercise) any or other rights and remedies provided herein, under other contracts and under law, all the rights and remedies of the remedies available to it (or to such agents) a secured party under the Security Documents.
(b) Uniform Commercial Code. Without limiting the generality of the foregoing, if upon the occurrence and during the continuation of an Event of Default shall have occurred and be continuingDefault, the Secured Party may exercise
(i) all at the rights request of a secured party under the UCC (whether Agent, each Grantor shall, at its cost and expense, assemble the Collateral owned or not in effect in used by it as directed by the jurisdiction where such rights are exercised) and Agent; (ii) all the powers given by section 30 of Agent shall have the Conveyancing Act 1983 of Bermuda right (but not the Conveyancing Act obligation) with respect to notify any Collateral and, in addition, account debtors and any obligors under Instruments or Accounts to make payments directly to the Secured Party mayAgent and to enforce the Grantors' rights against account debtors and obligors; (iii) the Agent may (but is not obligated to), without being required to give any notice, notice except as herein provided or as may be required by mandatory provisions of lawbelow, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem Agent deems to be commercially reasonable, irrespective ; (iv) the Agent may (but is not obligated to) direct any financial intermediary or any other Person holding Investment Property to transfer the same to the Agent or its designee; and (v) the Agent may (but is not obligated to) transfer any or all Intellectual Property registered in the name of any Grantor at the United States Patent and Trademark Office and/or Copyright Office and/or Canadian Intellectual Property Office into the name of the impact of Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell designee or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any Collateral. Each Grantor agrees that ten (10) days' notice of any sale referred to in clause (iii) above shall constitute sufficient notice. The Agent or all of the any Purchaser may purchase Collateral at any such sale and sale. The Grantors 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge liable to the purchaser or purchasers of Agent and the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of Purchasers for any part of the purchase money paid to the Secured Party or such officer or be answerable in deficiency amount.
(b) The Agent may comply with any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, applicable Law in connection with such sale or other disposition, a disposition of Collateral and its doing so shall compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. The Agent may sell the Collateral without giving any warranties and may specifically disclaim such sale or other disposition.
(c) warranties. If the Secured Party Agent sells any of the Collateral upon on credit, the Pledgors Borrower will only be credited only with payment payments actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In addition, each Grantor waives any and all rights that it may have to a judicial hearing in advance of the event enforcement of any of the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same Agent's rights and duties set forth hereinremedies hereunder, including, without limitation, its right following an Event of Default to take immediate possession of the Collateral and to exercise its rights and remedies with respect thereto.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(ec) For the purpose of enabling the Secured Party Agent to further exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesSection 6 or elsewhere provided by agreement or applicable Law, each Pledgor Grantor hereby grants to the Secured Party Agent, for the benefit of the Agent and the Purchasers, an irrevocable irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to such Pledgor), Grantor) to use, license or sublicense following an Event of Default, any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and wherever the same may be located, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Security Devices International Inc.), Securities Purchase Agreement
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Obligor will execute and deliver such documents and take such other action as the Administrative Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with applicable law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorObligor which may be waived, and each Pledgor hereby waives (Obligor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 shall (A) in the case of a public sale, state the time and place fixed for such sale, and (B) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights Administrative Agent giving the notice required to be given pursuant to Section 6. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and duties set forth hereinpay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Administrative Agent may (i) require each Obligor to, and each Obligor agrees that it will, at such time its expense and upon the request of the Administrative Agent, forthwith assemble all or any part of its Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Administrative Agent and remediesmake it available at a place designated by the Administrative Agent which is, each Pledgor hereby grants in its opinion, reasonably convenient to the Secured Party an irrevocable license Administrative Agent and such Obligor, whether at the premises of such Obligor or otherwise, (exercisable ii) have access to and use such Obligor’s books and records relating to the Collateral and (iii) prior to the disposition of the Collateral, prepare the Collateral for disposition in any manner and to the extent the Administrative Agent deems appropriate and, in connection with such preparation and disposition, use without payment of royalty charge any Trademark, Patent, copyright or other compensation to such Pledgor), to use, license technical process used by any Obligor. The Administrative Agent may also render any or sublicense any all of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, unusable at any Obligor’s premises and including in such license 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 dispose of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense Collateral on such premises without liability for rent or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcosts.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing, (i) the Secured Party mayAdministrative Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Patents or Trademarks or Common Law Rights included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Administrative Agent shall in its sole discretion determine but subject to applicable lawthe terms of any license pertaining to such Patent, Trademark or Common Law Right, (ii) the Administrative Agent may (without assuming any obligations or liability thereunder), at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensor, licensee or sublicensee all rights and remedies of any Obligor in, to and under any Patent Licenses or Trademark Licenses and take or refrain from taking any part action under any thereof, and each Obligor hereby releases the Administrative Agent and each of the Collateral other Secured Parties from, and agrees to hold the Administrative Agent and each of the other Secured Parties free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto, except any such claim to the extent that it arises solely as the result of the gross negligence or willful misconduct of any Secured Party and (iii) upon request by the Administrative Agent, each Obligor will execute and deliver to the Administrative Agent a private placementfurther power of attorney, restricting in form and substance satisfactory to the bidders and prospective purchasers to those who will represent and agree that they are purchasing Administrative Agent, for investment only and not for distributionthe implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of a Patent, Trademark, Patent License or Trademark License. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this SectionSection 7, each Pledgor agrees that, upon request Obligor shall supply its know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so Patents or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Trademarks and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Foot Locker Inc), Credit Agreement (Foot Locker Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Funding Note Indenture Trustee may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral applicable law and, in addition, the Secured Party Funding Note Indenture Trustee may, without being required to give any notice, except as herein provided in the Funding Note Indenture or as may be required by mandatory provisions of law, sell(i) apply all cash, if any, then held by it as all or otherwise dispose part of the Collateral as specified in Section 5.3 and (ii) if there shall be no such cash or if such cash shall be insufficient to pay all the Obligations in full, sell the Collateral (including each applicable Funding Agreement) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Funding Note Indenture Trustee may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Holder may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Global Funding will execute and deliver such documents and take such other action as the Funding Note Indenture Trustee deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Funding Note Indenture Trustee shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of Global Funding which may be waived, and each Pledgor hereby waives (Global Funding, to the extent permitted by law) , specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedlaw. The Secured Party notice (if any) of such sale shall (A) in the case of a public sale, state the time and place fixed for such sale, and (B) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Funding Note Indenture Trustee may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Funding Note Indenture Trustee may determine. The Funding Note Indenture Trustee shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Funding Note Indenture 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Funding Note Indenture Trustee until the selling price is paid by the purchaser thereof, but the Funding Note Indenture Trustee shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Funding Note Indenture Trustee, instead of exercising the power of sale conferred upon it in the Funding Note Indenture, may proceed by a private placementsuit or suits at law or in equity to foreclose a Security Interest and sell any Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Funding Note Indenture (Allstate Life Global Funding), Standard Funding Note Indenture Terms (Allstate Life Global Funding)
Remedies Upon Event of Default. (a) 6.1 If an any Event of Default has occurred and is continuing, subject to Nevada Gaming Law, Trustee shall have occurred the right, at its election, but not the obligation, to do any of the following, subject to compliance with applicable Gaming Laws: (i) notify the Pledged Subsidiaries to pay all dividends on the Stock to Trustee, for the benefit of the Noteholders; (ii) receive and be continuing, collect all such dividends and make application thereof to the Secured Party Obligations in such order as Trustee may exercise determine; (or cause its agents to exerciseiii) any or register all of the remedies available to it (Stock in the name of Trustee or to such agents) under its nominee, for the Security Documents.
(b) Without limiting the generality benefit of the foregoingNoteholders, if an Event of Default shall have occurred and be continuing, the Secured Party Trustee or its nominee may exercise
thereafter exercise (iA) all voting, corporate and other rights pertaining to the Stock at any meeting of shareholders of the Pledge Subsidiaries or otherwise, and (B) any and all rights of a secured party under conversion, exchange, subscription and any other rights, privileges or options pertaining to the UCC Stock as if Trustee were the absolute owner thereof; (whether iv) demand, ▇▇▇ for, collect or not receive any money or property at any time payable to or receivable by Pledgor on account of or in effect exchange for all or any part of the Collateral; (v) cause any action at law or suit in equity or other proceeding to be instituted and prosecuted to (A) collect or enforce any Obligations or rights hereunder or included in the jurisdiction where such rights are exercisedCollateral, including specific enforcement of any covenant or agreement contained herein, (B) and (ii) foreclose or enforce the security interest in all the powers given by section 30 or any part of the Conveyancing Act 1983 of Bermuda Collateral granted herein, or (the Conveyancing Act C) with respect to enforce any Collateral and, other legal or equitable right vested in addition, the Secured Party may, without being required to give any notice, except as herein provided it by this Agreement or as may be required by mandatory provisions of law, sell, ; (vi) sell or otherwise dispose of all or any part of the Collateral or cause all or any part thereof of the Collateral to be sold or otherwise disposed of in one or more parcels at public sales or private saletransactions, at any exchangesuch prices and in such manner as Trustee may deem appropriate, broker s board and for cash or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time any broker's board or times and at such price public or prices and upon such other terms as the Secured Party may deem commercially reasonableprivate sale, irrespective without demand of the impact performance or notice of any such sales on the market price of the Collateral; provided that the right of the Secured Party intention to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s time or the relevant Pledgor s obtaining, to the extent necessary place of sale (except such notice which under applicable lawlaw cannot be waived), it being agreed that Trustee may be a purchaser on behalf of the prior approval of Noteholders or on its own behalf at any such sale and that Trustee or any other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Person who may be the a bona fide purchaser for value and without notice of any claims of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall thereafter hold the property sold same absolutely free from any claim or right on the part of whatsoever kind, including any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights equity of redemption, stay of Pledgor or appraisal that it now has the Pledged Subsidiaries, any such demand, notice or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Secured Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time right and place fixed thereforequity being hereby expressly waived and released; (vii) incur expenses, including reasonable attorneys' fees, consultants' fees, and such sale may, other costs appropriate to the exercise of any right or power under this Agreement; (viii) perform any obligation of Pledgor hereunder; (ix) secure the appointment of a receiver for Pledgor without further notice, be made at notice to the time and place to which it was so adjourned. To Pledgor or the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title Pledged Subsidiaries; or as to (x) exercise any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely additional rights or remedies granted to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering secured party under the Securities ActUCC. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoingIf, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject pursuant to applicable law, from prior written notice of any such action is required to be given to Pledgor or the Pledged Subsidiaries, Pledgor and the Pledged Subsidiaries hereby acknowledge and agree that the minimum time to time attempt to sell all required by such applicable law, or if no minimum is specified, of five business days, shall be deemed a reasonable notice period.
6.2 All costs and expenses (including, without limitation, attorneys' fees, consultants' fees and other related costs) incurred by Trustee in connection with exercising any remedy provided for herein or at law, or performing any of Pledgor's agreements contained herein or in respect of any part of the Collateral Collateral, together with interest thereon at the maximum rate permitted by a private placementlaw computed from the date on which such costs or expenses are incurred to the date of payment thereof, restricting shall constitute part of the bidders Obligations secured by this Agreement and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed shall be paid by the Secured Party Pledgor to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the CollateralTrustee on demand.
(g) 6.3 If the Secured Party Trustee shall determine decide to exercise its right to sell any or all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request for the benefit of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverNoteholders, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, if in the opinion of counsel for the Secured PartyTrustee it is necessary to have such Collateral, desirable or that portion thereof to register such Collateral be sold, registered under the provisions of the Securities ActAct of 1933, as amended, or otherwise registered or qualified under any federal or state securities laws or regulations (collectively, the "Securities Laws"), Pledgor and the Pledged Subsidiaries will execute and deliver, all at Pledgor's expense, all such instruments and documents which, in the opinion of Trustee, are necessary to register or qualify such Collateral, or that portion thereof to be sold, under the provisions of the Securities Laws. Pledgor and the Pledged Subsidiaries will execute and will use best efforts to cause the any registration statement relating thereto to become effective and to remain effective for a period of not less than six months from the date of the first public offering of such period as prospectuses are required by law Collateral, or that portion thereof to be furnishedsold, and to make all amendments and supplements thereto and and/or to the any related prospectuses prospectus or similar document which, in the reasonable opinion of the Secured PartyTrustee, are necessary or desirablenecessary, all in conformity with the requirements Securities Laws applicable thereto. Without limiting the generality of the Securities Act and foregoing, Pledgor agrees to comply with the rules and regulations provisions of the Securities securities or "Blue Sky" laws of any jurisdiction(s) which Trustee shall reasonably designate and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective its security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; andAct of 1933.
(iv) do or cause 6.4 So long as no Event of Default has occurred and is continuing, Pledgor reserves the right to be done exercise all such other acts and things of its rights as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale holder of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure Stock (except as limited by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each terms of the Pledgors acknowledges Indenture) and agrees that in exercising any rights under or with respect to receive all income and other distributions arising therefrom (except as limited by the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralIndenture).
Appears in 2 contracts
Sources: Pledge and Security Agreement (Herbst Gaming Inc), Pledge and Security Agreement (Herbst Gaming Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (to the extent permitted by law, whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Administrative Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on any or all of the Pledged Instruments and on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provisions of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Company covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany which may be waived, and each Pledgor hereby waives (the Company, to the extent permitted by law) , hereby specifically WAIVES all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Applied Extrusion Technologies Inc /De), Credit Agreement (Applied Extrusion Technologies Inc /De)
Remedies Upon Event of Default. (a) If an any Event of Default shall have under the Credit Agreement has occurred and be is continuing, the Secured Party may exercise (or cause its agents to exercise) any or all Collateral Agent may, in accordance with the written instructions of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality Required Lenders, exercise on behalf of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Account and apply such monies, Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such monies, Liquid Investments or otherwise dispose of cash or if such monies, Liquid Investments or cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. The Company will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany which may be waived, and each Pledgor hereby waives (to the Company, o the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum extent permitted Collateral on credit or for future delivery, the Collateral so sold may be retained by lawthe Collateral Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Collateral Agent shall not incur any claim against liability in case of the Secured Party arising because failure of such purchaser to take up and pay for the price at which Collateral so sold and, in case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Collateral Agent, instead of exercising the power of sale herein conferred upon it, may disclaim in accordance with the instructions of the Required Lenders proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to any other matter, in connection with such sale decree of a court or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness courts of such sale or other dispositioncompetent jurisdiction.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Collateral Agent may (i) require the Company to, and the Company agrees that it will, at such time its expense and upon the request of the Collateral Agent, forthwith assemble all or any part of the Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Collateral Agent and remediesmake it available at a place designated by the Collateral Agent which is, each Pledgor hereby grants in the opinion of the Collateral Agent, reasonably convenient to the Secured Party an irrevocable license Collateral Agent and the Company, whether at the premises of the Company or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premise where any of the Collateral consisting is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use the Company's books and records relating to the Collateral and (iv) prior to the disposition of Intellectual Property now the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such Pledgorthe Company, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software the extent the Collateral Agent reasonably deems appropriate and, in connection with such preparation and programs disposition, use without charge any copyright, trademark, trade name, patent or technical process used for the compilation or printout thereof. The use of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of DefaultCompany.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, if any Event of Default (as defined under the Credit Agreement) has occurred and is continuing,
(i) the Collateral Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Copyrights, Patents or Trademarks included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its sole discretion determine;
(ii) the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time, in its sole discretion, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Company in, to and under any Copyright Licenses, Patent Licenses or Trademark Licenses included in the Collateral and take or refrain from taking any action under any thereof, and the Company hereby releases the Collateral Agent and each Pledgor of the other Secured Parties from, and agrees thatto hold the Collateral Agent and each of the other Secured Parties free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto; and
(iii) upon request by the Collateral Agent, the Company will execute and deliver to the Collateral Agent a power of attorney, in form and substance satisfactory to the Collateral Agent, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of a Copyright, Patent or Trademark included in the Collateral or any action related thereto. In the event of any such disposition pursuant to this Section, the Company shall supply its know-how and expertise relating to the manufacture and sale of the products bearing Trademarks or the products or services made or rendered in connection with Patents, and its customer lists and other records relating to such Patents or Trademarks and to the distribution of said products, to the Collateral Agent.
(d) Notwithstanding anything to the contrary contained herein or any other Loan Document, neither the Collateral Agent nor any Secured Party shall, without first obtaining the approval of a Governmental Authority, take any action pursuant to this Agreement or any other Loan Document which would constitute or result in an assignment of any License held by the Company or a transfer of control of the Company if such assignment or transfer would require, under the existing applicable law, the prior approval of such Governmental Authority. The Company agrees to take, and the Company agrees to cause the Borrower and each of its Subsidiaries to take, in each case upon the occurrence and during the continuation continuance of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of action that the Collateral by a private placement, restricting the bidders and prospective purchasers Agent may reasonably request in order to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or obtain from any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit Governmental Authority such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, approval as may be necessary or, in to enable the opinion Collateral Agent to assign or transfer control of the Secured PartyLicenses pursuant to this Agreement, desirable the Loan Documents and each other agreement, instrument and document delivered to register such the Collateral under Agent in connection herewith and therewith, including specifically, at the provisions expense of the Securities ActCompany, the use of the Company's and the Borrower's and each of its Subsidiaries' commercially reasonable efforts to assist in obtaining approval of such Governmental Authority for any action or transaction contemplated by this Agreement for which such approval is or shall be required by law, and specifically, without limitation, upon request, to cause prepare, sign and file with such Governmental Authority, the registration statement relating thereto to become effective and to remain effective assignor's or transferor's portion of any application or applications for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and consent to the related prospectuses which, in the opinion assignment of the Secured Party, are any License or transfer of control necessary or desirable, all in conformity with the requirements of the Securities Act and appropriate under the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so Governmental Authority for approval of any sale or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling sales of any of the CollateralCollateral by or on behalf of the Collateral Agent.
Appears in 2 contracts
Sources: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall have under the Credit Agreement has occurred and be is continuing, the Secured Party may exercise (or cause its agents to exercise) any or all Collateral Agent may, in accordance with the written instructions of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality Required Lenders, exercise on behalf of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Account and apply such monies, Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such monies, Liquid Investments or otherwise dispose of cash or if such monies, Liquid Investments or cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. The Company will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany which may be waived, and each Pledgor hereby waives (the Compan, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum extent permitted Collateral on credit or for future delivery, the Collateral so sold may be retained by lawthe Collateral Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Collateral Agent shall not incur any claim against liability in case of the Secured Party arising because failure of such purchaser to take up and pay for the price at which Collateral so sold and, in case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Collateral Agent, instead of exercising the power of sale herein conferred upon it, may disclaim in accordance with the instructions of the Required Lenders proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to any other matter, in connection with such sale decree of a court or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness courts of such sale or other dispositioncompetent jurisdiction.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Collateral Agent may (i) require the Company to, and the Company agrees that it will, at such time its expense and upon the request of the Collateral Agent, forthwith assemble all or any part of the Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Collateral Agent and remediesmake it available at a place designated by the Collateral Agent which is, each Pledgor hereby grants in the opinion of the Collateral Agent, reasonably convenient to the Secured Party an irrevocable license Collateral Agent and the Company, whether at the premises of the Company or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premise where any of the Collateral consisting is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use the Company's books and records relating to the Collateral and (iv) prior to the disposition of Intellectual Property now the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such Pledgorthe Company, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software the extent the Collateral Agent reasonably deems appropriate and, in connection with such preparation and programs disposition, use without charge any copyright, trademark, trade name, patent or technical process used for the compilation or printout thereof. The use of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of DefaultCompany.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
Default (g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral defined under the provisions of the Securities Act, Credit Agreement) has occurred and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.continuing,
Appears in 2 contracts
Sources: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without obligation to resort to other security under any other Security Documents or to recourse against any other guarantor (including without limitation the Subsidiary or any other Guarantor Subsidiary), surety or other person liable, and without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell(a) apply the cash, if any, then held by it as Collateral as specified in Section 12, and (b) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part parts thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent, acting reasonably, may deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of if the Collateral so is of a type customarily sold and such purchaser in a recognized market or purchasers shall not be obligated to see to is of a type which is the application subject of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser widely distributed standard price quotations at any such sale shall private sale) and thereafter hold the property sold absolutely same, absolutely, free from any claim equity or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness right or claim of such sale or other dispositionwhatsoever kind.
(cb) If Notwithstanding anything to the contrary contained herein or any other Loan Document, neither the Collateral Agent nor any Secured Party sells shall, without first obtaining approval of a Governmental Authority, take any action pursuant to this Pledge Agreement or any other Loan Document which would constitute or result in an assignment of any License held by the Pledgor, the Subsidiary or any of its subsidiaries, or which would constitute a transfer of control of the Collateral upon creditSubsidiary or any of its subsidiaries that hold a License (including without limitation, any voting of the Pledged Stock), if such assignment or transfer would require, under the existing applicable law, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereofprior approval of such Governmental Authority. In the event the purchaser fails The Pledgor agrees to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgortake, and including the Pledgor agrees to cause the Subsidiary and each of its subsidiaries to take, in such license 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 Secured Party may be exercised only each case upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation continuance of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of action that the Collateral by a private placement, restricting the bidders and prospective purchasers Agent may reasonably request in order to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or obtain from any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit Governmental Authority such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, approval as may be necessary orto enable the Collateral Agent to transfer the Pledged Securities pursuant to this Pledge Agreement, the Loan Documents and each other agreement, instrument and document delivered to the Collateral Agent in connection herewith and therewith, including specifically, at the opinion expense of the Secured PartyPledgor, desirable to register such Collateral under the provisions use of the Securities ActPledgor's and the Subsidiary's and each of its subsidiaries' commercially reasonable efforts to assist in obtaining approval of such Governmental Authority for any action or transaction contemplated by this Agreement for which such approval is or shall be required by law, and specifically, without limitation, upon request, to cause prepare, sign and file with such Governmental Authority, the registration statement relating thereto to become effective and to remain effective assignor's or transferor's portion of any application or applications for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and consent to the related prospectuses which, in the opinion transfer of the Secured Party, are any Pledged Securities necessary or desirable, all in conformity with the requirements of the Securities Act and appropriate under the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so Governmental Authority for approval of any sale or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling sales of any of the CollateralCollateral by or on behalf of the Collateral Agent or any assumption by the Collateral Agent of voting rights relating thereto effected in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Administrative Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Personal Property Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Administrative Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Administrative Agent, which may be withheld in its discretion) 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any such sale of Collateral by the Secured Party Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party Administrative Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim claim, or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party Administrative Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party Administrative Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sGrantor(s) as (and if) required by Section 1418.
(ed) For the purpose of enabling the Secured Party Administrative Agent to exercise rights and remedies under this Agreement at such time as the Secured Party Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Pledgor Grantor hereby grants to the Secured Party Administrative Agent an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgorthe Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license 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 Secured Party Administrative Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided provided, however, that any license, sublicense or other transaction entered into by the Secured Party Administrative Agent in accordance herewith shall be binding upon such Pledgor each Grantor notwithstanding any subsequent cure of an Event of Default.
(fe) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the The foregoing provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect shall apply to Real Property Collateral only to the Collateral, extent permitted by applicable law and the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling provisions of any of the Collateralapplicable Mortgage.
Appears in 2 contracts
Sources: Guarantee and Security Agreement (Cloud Peak Energy Inc.), Guarantee and Security Agreement (Cloud Peak Energy Resources LLC)
Remedies Upon Event of Default. (a) 7.1 If an any Event of Default shall have occurred and be continuingexist, the Secured Party may may, after providing Debtor at least five (5) days written notice, exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party Secured Party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) U.C.C., and, with respect to any Collateral andAccounts, the rights provided in Section 9 hereinafter. In addition, the Secured Party may, without being required to give any notice, notice except as herein provided provided, (i) set-off the Additional Collateral against the Obligation; (ii) apply the cash, if any, then held by it as Collateral in the manner specified in Section 11; and (iii) if there shall be no such cash or as may if such cash shall be required by mandatory provisions of lawinsufficient to pay all the Obligations in full, sellsell the Collateral, or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective satisfactory.
7.2 The Secured Party may require the Debtor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral and make it available to the Secured Party s or the relevant Pledgor s obtaining, at a place to the extent necessary under applicable law, the prior approval of such sale or other disposition be designated by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party which is reasonably convenient to the Secured Party.
7.3 Any holder of any or all of the Obligations may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is subject to widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely free from any claim or right on of whatsoever kind, including any equity or right or redemption of the part of any PledgorDebtor. The Debtor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted.
7.4 The Secured Party shall give the Debtor five (5) days' written notice of its intention to make any such public or private sale or sale at a broker's board or on a securities exchange, which notice period is deemed by Debtor and by the Secured Party to be commercially reasonable. Such notice, in case of a public sale, shall state the time and place fixed for such sale, and in case of sale at a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, 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 Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may may, without notice or publication, adjourn any public or private the sale from time to time by announcement at the time and place fixed thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof, but the Secured Party shall solicit not incur any liability in case of the failure of such offerspurchaser to take up and pay for the Collateral so sold and, then in case of any such failure, such Collateral may again be sold upon like notice.
7.5 Secured Party may sell the acceptance Collateral without giving any warranties of any kind. Secured Party may specifically disclaim any warranties of title or the like and warranties of fitness and merchantibility. The disclaimer of warranties by the Secured Party of one of the offers shall not be deemed to be a commercially reasonable method affect adversely the commercial reasonableness of disposing any disposition of the Collateral.
(g) If 7.6 The Secured Party, instead of exercising the Secured Party shall determine power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to exercise its right to foreclose the Security Interest and sell all the Collateral, or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Aureus Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Lender may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in any order and in any combination, including to collect any and all Secured Obligations from the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Lender may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Lender may deem commercially reasonable, irrespective satisfactory. Lender shall give the Borrower not less than ten (10) days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Each Grantor agrees that any such sales on notice constitutes "reasonable notification" within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Each Grantor agrees during an Event of Default to execute and deliver such documents and take such other action as Lender reasonably deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by Lender shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of the Grantors. To the extent permitted by applicable law) , each Grantor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Lender may fix in the notice of such sale. At any such sale Collateral may be sold in one (1) lot as an entirety or in separate parcels, as Lender may determine. Lender shall not be obliged obligated to make any such sale of Collateral regardless of pursuant to any such notice. Lender may, without notice of sale having been given. The Secured Party may or publication (other than any notices required by this Section 8 or by applicable law), 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, such Collateral so sold may be retained by Lender until the selling price is paid by the purchaser thereof, but Lender shall not incur any liability in case of the failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. The Grantors shall remain liable for any deficiency.
(c) For the bidders purpose of enforcing any and prospective purchasers to those who will represent all rights and agree remedies under this Agreement, Lender may (i) require any Grantor to, and each Grantor agrees that they are purchasing for investment only it will, at the joint and not for distribution. In doing soseveral expense of the Grantors, and upon the Secured Party may solicit offers to buy the Collateral request of Lender, forthwith assemble all or any part thereof for cash, from of its Collateral as directed by Lender and make it available at a limited number of investors reasonably believed place designated by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orLender which is, in Lender’s opinion, reasonably convenient to Lender and such Grantor, whether at the opinion premises of the Secured Partysuch Grantor or otherwise, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute the extent permitted by applicable law, enter, with or without process of law and deliverwithout breach of the peace, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all any premise where any such instruments and documents, and to do so Collateral is or cause to be done all such other acts and things, as may be necessary orlocated and, in the opinion of the Secured Partywithout charge or liability to Lender, desirable to qualify the seize and remove such Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateralsuch premises, as requested by the Secured Party;
(iii) cause have access to and use such Grantor’s books and records, computers and software (subject to the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions terms of Section 11(aapplicable licenses) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect relating to the Collateral, and (iv) prior to the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling disposition of any of the Collateral, store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by such Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to the extent Lender deems appropriate and, in connection with such preparation and disposition, use without charge any trademark, trade name, copyright, patent or technical process used such Grantor.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC Uniform Commercial Code (whether or not the Uniform Commercial Code is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral, and (ii) if there shall be no such cash or otherwise dispose if such cash shall be insufficient to pay all the Secured Obligations in full then, after ten (10) days written notice by the Secured Party to the Debtors of acceleration of the Collateral Secured Obligations, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party shall deem satisfactory. The Secured Party may deem commercially reasonable, irrespective require the Debtors to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral and make it available to the Secured Party s or the relevant Pledgor s obtaining, at a place to the extent necessary under applicable law, the prior approval of such sale or other disposition be designated by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party which is reasonably convenient. Any holder of an Obligation may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of the Debtors. The Secured Party shall give the Debtors ten (10) days' prior written notice of its intention to make any such public or private sale or sale at a broker's board or on a securities exchange. Such notice, in case of a public sale, shall state the part of any Pledgortime and place fixed for such sale, and each Pledgor hereby waives (in case of sale at a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the extent permitted by law) all rights of redemptionday on which the Collateral, stay or appraisal that it now has the portion thereof so being sold, 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 Secured Party may at any time fix in the future have under notice of such sale. At any rule of law such sale the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enacted. in separate parcels, as the Secured Party may determine The Secured Party shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of notice of sale having been givensuch notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof, but the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one not incur any liability in case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gb) If The Secured Party, instead of exercising the Secured Party shall determine power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to exercise its right to foreclose the Security Interests and sell all the Collateral, or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. HIG covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right 7 197 to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any Lien, claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of HIG which may be waived, and each Pledgor hereby waives (HIG, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange or quotation system, state the board, exchange or quotation system at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Lets Talk Cellular & Wireless Inc)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents or co-agents, if any, to exercise) any or all of the remedies available to it (or to such agents or co-agents) under the Security Collateral Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, withdraw all cash held in the Collateral Accounts and apply such cash as provided in Section 20 and, if there shall be no such cash or if such cash shall be insufficient to pay all the Secured Obligations in full, sell, lease, license or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may Collateral Agent shall deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of Collateral so sold or otherwise disposed of at any public disposition (or, if the Collateral is of a type customarily sold in a recognized market or all is of a type which is the subject of widely distributed standard price quotations, at any private disposition). The Collateral Agent is authorized, in connection with any such disposition, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any securities included in the Collateral to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such securities, (ii) to cause to be placed on any security included in the Collateral a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the Collateral at provisions of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for or other disposition as the purpose of bidding and making settlement Collateral Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Lien Grantor agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall other disposition may be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable made in any way for the misapplication thereofcompliance with law. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorLien Grantor that may be waived, and each Pledgor hereby waives (Lien Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sLien Grantor(s) as (and if) required by Section 1416. The Collateral Agent shall not be obligated to make any such disposition pursuant to any such notice. The Collateral Agent may, without notice or publication, adjourn any public or private disposition or cause the same to be adjourned from time to time by announcement at the time and place fixed for the disposition, and such disposition may be made at any time or place to which the same may be so adjourned.
(ec) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement Agreement, the Collateral Agent may (i) require each Lien Grantor to, and each Lien Grantor agrees that it will, at such time its expense and upon the reasonable request of the Collateral Agent, forthwith assemble all or any part of its Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Collateral Agent and remediesmake it available at a place designated by the Collateral Agent which is, each Pledgor hereby grants in the Collateral Agent's opinion, reasonably convenient to the Secured Party an irrevocable license Collateral Agent and such Lien Grantor, whether at the premises of such Lien Grantor or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premises where any of the Collateral consisting is or may be located, and without charge or liability to the Collateral Agent seize and remove such Collateral from such premises, (iii) have access to and use each Lien Grantor's books and records relating to its Collateral and (iv) prior to the disposition of Intellectual Property now any Lien Grantor's Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such PledgorLien Grantor, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software the extent the Collateral Agent deems appropriate and, in connection with such preparation and programs disposition, use without charge any trademark, trade name, copyright, patent or technical process used for the compilation or printout thereofby such Lien Grantor. The use Collateral Agent may also render any or all of such license by the Secured Party Collateral unusable at such Lien Grantor's premises and may be exercised only upon the occurrence and during the continuation dispose of an Event of Default; provided that any license, sublicense such Collateral on such premises without liability for rent or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcosts.
(fd) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of if an Event of DefaultDefault shall have occurred and be continuing, then, after giving notice to the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expenserelevant Lien Grantor:
(i) use its best efforts to execute and deliverthe Collateral Agent may license or sublicense, whether general, special or otherwise, and cause the Subject Issuers and the directors and officers thereof to execute and deliverwhether on an exclusive or non-exclusive basis, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, any Intellectual Property included in the opinion of Collateral throughout the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective world for such period term or terms, on such conditions and in such manner as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, Collateral Agent shall in its sole reasonable discretion determine; PROVIDED that such licenses or sublicenses do not conflict with any existing license of which the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable theretoCollateral Agent shall have received a copy;
(ii) use the Collateral Agent may (without assuming any obligation or liability thereunder), at any time and from time to time, in its best efforts sole and reasonable discretion, enforce (and shall have the exclusive right to execute enforce) against any licensee or sublicensee all rights and deliverremedies of any Lien Grantor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and cause each Lien Grantor releases the Subject Issuers Collateral Agent and the directors and officers thereof to execute and deliver, all such instruments and documentseach other Secured Party from liability for, and agrees to do hold the Collateral Agent and each other Secured Party free and harmless from and against any claims and expenses arising out of, any lawful action so taken or cause omitted to be done all taken with respect thereto, except for claims and expenses arising from the Collateral Agent's or such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws 's gross negligence or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;willful misconduct; and
(iii) cause upon request by the Subject Issuers to make available to their respective security holders, Collateral Agent (which shall not be construed as soon as practicable, an earnings statement which will satisfy implying any limitation on the provisions of Section 11(a) of the Securities Act; and
(iv) do rights or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale powers of the Collateral Agent), each Lien Grantor will execute and deliver to the Collateral Agent a power of attorney, in form and substance reasonably satisfactory to the Collateral Agent, for the implementation of any sale, lease, license or other disposition of any Intellectual Property owned by such Lien Grantor or any part thereof action related thereto. In connection with any such disposition, but subject to any confidentiality restrictions imposed on such Lien Grantor in compliance any license or similar agreement, such Lien Grantor will supply to the Collateral Agent its know-how and expertise relating to the relevant Intellectual Property or the products or services made or rendered in connection with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damagesIntellectual Property, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges customer lists and agrees that in exercising any rights under or with respect other records relating to such Intellectual Property and to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling distribution of any of the Collateralsaid products or services.
Appears in 1 contract
Sources: Security Agreement (Polaroid Corp)
Remedies Upon Event of Default. Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees to deliver each item of Collateral to the Collateral Agent on demand, 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) If with respect to any Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an Event assignment, transfer and conveyance of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any of or all of such Collateral by the remedies available applicable Grantors to it (the Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such agents) under Collateral throughout the Security Documents.
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 Collateral and without liability for trespass to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral and, generally, to exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, if an Event of Default each Grantor agrees that the Collateral Agent shall have occurred and be continuingthe right, subject to the Secured Party may exercise
(i) all the rights mandatory requirements of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell, or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in all or any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all part of the 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 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 shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of agree that they are purchasing the Collateral sold at for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such public salesale the Collateral Agent shall have the right to assign, to use transfer and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge deliver to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. 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 PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or and appraisal that it which such 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 Party Collateral Agent shall not be obliged give the applicable Grantors 10 days’ 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 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 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 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 Collateral Agent may (in its sole and absolute discretion) determine. The 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 having of such Collateral shall have been given. The Secured Party may 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 thereforfor sale, and such sale may, without further notice, be made at the time and place to which it the same was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives In case any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing is made on credit or for investment only and not for distribution. In doing sofuture delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the 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 law, private) sale made pursuant to this Agreement, any Secured Party may solicit offers bid for or purchase, free (to buy the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all such rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for cash, from a limited number of investors reasonably believed sale and may make payment on account thereof by the using any claim then due and payable to such Secured Party to be institutional investors or other accredited investors who might be interested in purchasing from any Grantor as a credit against the Collateral. If the purchase price, and such Secured Party shall solicit may, upon compliance with the terms of sale, hold, retain and dispose of such offersproperty without further accountability to any Grantor therefor. For purposes hereof, then a written agreement to purchase the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all Collateral or any portion of thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute agreement and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to no Grantor shall be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and entitled to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale return of the Collateral or any part portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in compliance with applicable lawfull. Each Pledgor acknowledges that there is no adequate remedy As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law for failure or in equity to foreclose 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 it a court-appointed receiver. Any sale pursuant to comply with the provisions of this Section and that such failure would not 4.01 shall be adequately compensable deemed to conform to the commercially reasonable standards as provided in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each 9-610(b) of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralUCC.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Intercompany Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell satisfactory. Any Lender or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Sunbeam Entity may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Grantor will execute and deliver such documents and take such other action as the Secured Party deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorGrantor which may be waived, and each Pledgor hereby waives (the Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The notice (if any) of such sale shall (1) in the case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In the maximum extent permitted by law, each Pledgor hereby waives case of any claim against the Secured Party arising because the price at which sale of all or any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any part of the Collateral upon crediton credit or for future delivery, the Pledgors will Collateral so sold may be credited only with payment actually made by the purchaser, received retained by the Secured Party and applied in accordance with Section 12 hereof. In until the event selling price is paid by the purchaser fails thereof, but the Secured Party shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, the Secured Party may resell the sameor any portion thereof, subject to the same rights and duties set forth hereinunder a judgment or decree of a court or courts of competent jurisdiction.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights may, at any time when an Event of Default has occurred and remediesis continuing, each Pledgor hereby grants (i) require the Grantor to, and the Grantor agrees that it will, at the Grantor's expense and upon the request of the Secured Party, forthwith assemble all or any part of the Collateral as directed by the Secured Party and make it available at a place designated by the Secured Party which is, in its opinion, reasonably convenient to the Secured Party an irrevocable license and the Grantor, whether at the premises of the Grantor or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premises where any of the Collateral consisting is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use the Grantor's books and records relating to the Collateral and (iv) prior to the disposition of Intellectual Property now the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such Pledgorthe Grantor, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software and programs used for the compilation or printout thereof. The use of such license by extent the Secured Party may be exercised only upon the occurrence deems appropriate and, in connection with such preparation and during the continuation of an Event of Default; provided that disposition, use without charge any licenseTrademark, sublicense trade name, Copyright, Patent or other transaction entered into technical process used by the Grantor. The Secured Party in accordance herewith shall be binding upon may also render any or all of the Collateral unusable at the Grantor's premises and may dispose of such Pledgor notwithstanding any subsequent cure of an Event of DefaultCollateral on such premises without liability for rent or costs.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders Default has occurred and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, is continuing,
(i) the Secured Party may solicit offers to buy license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Copyrights, Patents or Trademarks included in the Collateral throughout the world for such term or any part thereof for cashterms, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested on such conditions and in purchasing the Collateral. If such manner as the Secured Party shall solicit in its sole discretion determine; PROVIDED that such offerslicenses and or sublicenses do not violate the terms of any other license to which the Grantor is a party;
(ii) the Secured Party may (without assuming any obligations or liability thereunder), then at any time and from time to time, enforce (and shall have the acceptance exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Grantor in, to and under any Copyright Licenses, Patent Licenses or Trademark Licenses and take or refrain from taking any action under any thereof, and the Grantor hereby releases the Secured Party from, and agrees to hold the Secured Party free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto; and
(iii) upon request by the Secured Party of one of Party, the offers shall be deemed Grantor will execute and deliver to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine a power of attorney, in form and substance satisfactory to exercise its right to sell all the Secured Party, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of a Copyright, Patent or Trademark. In the event of any portion of the Collateral such disposition pursuant to this Section, each Pledgor agrees thatthe Grantor shall, upon request request, and upon the execution of reasonable confidentiality agreements, supply its know-how and expertise relating to the manufacture and sale of the products bearing Trademarks or the products or services made or rendered in connection with Patents, and its customer lists and other records relating to such Patents or Trademarks and to the distribution of said products, to the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 1 contract
Sources: Security Agreement (Coleman Co Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Banks all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (B) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (C) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Debtor will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorDebtor which may be waived, and each Pledgor hereby waives (the Debtor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuingoccur, the Agent on behalf of the Secured Party Parties may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC (whether or not Uniform Commercial Code. Without limitation of the foregoing, unless the Obligations shall have been paid in effect full in cash, the Agent at the Secured Parties' direction, may, in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party mayParties' sole discretion, without being required to give any further demand, advertisement or notice, except as herein expressly provided for in subsection (i) below, apply the cash, if any, then held by it as collateral hereunder, for the purposes and in the manner provided in SECTION 7 hereof, and, if there shall be no such cash or as may the cash so applied shall be required by mandatory provisions insufficient to make payment in full of lawall payments provided in SECTION 7 hereof,
(i) Sell the Pledged Securities, sell, or otherwise dispose of the Collateral or any part thereof thereof, in one or more parcels sales, at public or private sale, at conducted by any exchange, broker s board officer or at any agent of the Secured Party s offices Agent, at a place of business of the Agent or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem Agent shall, in a commercially reasonablereasonable manner, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtainingdetermine, and, to the extent necessary under applicable permitted by law, the prior approval of such sale Agent or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salePledged Securities so sold. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral Pledged Securities so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser (including the Agent or any Secured Party) at any such sale shall hold the property sold Pledged Securities so sold, absolutely free from any claim or right on of whatsoever kind, including, without limitation, any equity or right of redemption of the part of any Pledgor which the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemptionit may lawfully do so, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedhereby specifically waives. The Secured Party Agent shall give the Pledgor at least 15 days' advance written notice of any such public or private sale. The Agent shall not be obliged obligated to make any sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Agent may, without notice or publication, adjourn any public or private sale from time to time by announcement at the time and place fixed thereforfor such sale, or any adjournment thereof, and any such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title adjourned without further notice or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereofpublication. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral Pledged Securities for credit or for future delivery, the Pledged Securities so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to pay for the Pledged Securities so sold, and in case of any such failure, such Pledged Securities may again be sold under and pursuant to the provisions hereof; or
(ii) Proceed by a private placementsuit or suits at law or in equity to foreclose upon this Pledge Agreement and sell the Pledged Securities, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gb) If at any time when the Agent at the Secured Party Parties' direction shall determine to exercise its right to sell all or any portion part of the Collateral Pledged Securities pursuant to subsection (a)(i) of this Section, each Pledgor agrees thatsuch Pledged Securities or the part thereof to be sold shall not, upon request for any reason whatsoever, be effectively registered under the Securities Act of 1933, as from time to time in effect (the "Securities Act") or the securities laws of any state, the Agent, at the Secured Parties' direction, in their sole and absolute discretion, is hereby expressly authorized to sell such Pledged Securities or such part thereof by private sale in such manner and under such circumstances as the Agent and the Secured Parties may deem commercially reasonable in order that such sale may legally be effected without such registration. The Agent and the Secured Parties shall sell all or any part of the Secured Party, such Pledgor will, Pledged Securities at its own expense:a price which they deem commercially reasonable under the circumstances.
(ic) use its best efforts The Agent as attorney-in-fact pursuant to SECTION 8 hereof may, in the name and stead of the Pledgor, make and execute all conveyances, assignments and delivertransfers of the Pledged Securities sold in accordance with this Agreement. The Pledgor shall, if so reasonably requested by the Agent, ratify and cause confirm any sale or sales by executing and delivering to the Subject Issuers and the directors and officers thereof Agent, or to execute and deliversuch purchaser or purchasers, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary ormay, in the opinion reasonable judgment of the Secured PartyAgent, desirable to register be advisable for such Collateral under the provisions purpose.
(d) The receipt of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion Agent of the Secured Party, are necessary or desirable, all in conformity with purchase money paid at any such sale made by it shall be a sufficient discharge therefor to any purchaser (other than the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(aAgent) of the Securities ActPledged Securities, or any portion thereof, sold as aforesaid; and
and no such purchaser (ivor his or its representatives or assigns) do or cause (other than the Agent), after paying such purchase money and receiving such receipt, shall be bound to be done all see to the application of such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral purchase money or any part thereof or in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law any manner whatsoever be answerable for failure by it any loss, misapplication or nonapplication of any such purchase money, or any part thereof, or be bound to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect inquire as to the Collateralauthorization, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electsnecessity, and each Pledgor waives any right to require the marshaling expediency or regularity of any of the Collateralsuch sale.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein or in the Credit Agreement or any other Financing Document provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such cash or otherwise dispose of Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Company will execute and deliver such documents and take such other action as the Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany which may be waived, and each Pledgor hereby waives (the Company, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 shall not be obliged to make any sale (1) in case of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (2) in the case of a private sale, state the day after which such sale may, without further notice, may be made at the time and place to which it was so adjournedconsummated. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold Any such public sale shall be held at such a private sale was less than time or times within ordinary business hours and at such place or places as the price that might have been obtained at a public sale, even if Agent may fix in the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness notice of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereofsale. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of At any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that be sold in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such one lot as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.an
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent, upon being instructed to exercise) any or do so by the Required Lenders, may, in addition to all of the other rights and remedies available granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the Secured Party may exercise
right to give instructions or a notice of sole control to an issuer subject to an Issuer Control Agreement): (i) exercise on behalf of the Finance Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of lawLaw) to or upon any Loan Party or any other Person (all of which demands and/or notices are hereby waived by each Loan Party), (A) apply all cash, if any, then held by it as Collateral as specified in Section 6.08 and (B) if there shall be no such cash, Liquid Investments or other amounts or if such cash, Liquid Investments and other amounts shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonablereasonably satisfactory.
(b) If any Event of Default has occurred and is continuing, irrespective the Collateral Agent shall give each Loan Party not less than 10 days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in Section 9-613 of the UCC, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of Law under the UCC. The Collateral Agent and each Loan Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Loan Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable lawLaw, notice and judicial hearing in connection with the Secured Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Finance Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Loan Party will execute and deliver such documents and take such other action reasonably necessary in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with Law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy be retained by the Collateral or any part thereof for cash, from a limited number of investors reasonably believed Agent until the selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested purchaser thereof, but the Collateral Agent shall not incur any liability in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gd) If Notwithstanding anything to the Secured Party shall determine to contrary in this Agreement, the exercise its right to sell all or any portion of remedies under this Agreement by the Collateral pursuant Agent upon the occurrence and during an Event of Default shall be subject to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a8.02(e) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralCredit Agreement.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent may, subject to exercise) any or the Intercreditor Agreement and the Collateral Agency Agreement, in addition to all of the other rights and remedies available granted to it (in this Agreement and any other agreement securing, evidencing or relating to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
Finance Obligations: (i) exercise on behalf of the Finance Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of lawLaw) to or upon any Loan Party or any other Person (all of which demands and/or notices are hereby waived by each Loan Party), (A) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 5.04, (B) give notice and take sole possession and control of all amounts on deposit in or credited to any Deposit Account or Securities Account pursuant to the related Account Control Agreement and apply all such funds as specified in Section 5.04 hereof and (C) if there shall be no such cash, Liquid Investments or other amounts or if such cash, Liquid Investments and other amounts shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective satisfactory.
(b) The Collateral Agent shall give each Loan Party not less than 10 days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in UCC Section 9-613, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Loan Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Loan Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable lawLaw, notice and judicial hearing in connection with the Secured Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Finance Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Loan Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with Law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be made retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice.
(d) For the purpose of enforcing any and all rights and remedies under this Agreement, the Collateral Agent may, subject to the Intercreditor Agreement, if any Event of Default has occurred and is continuing, (i) require each Loan Party to, and each Loan Party agrees that it will, at its expense and upon the request of the Collateral Agent, forthwith assemble, store and keep all or any part of the Collateral as directed by the Collateral Agent and make it available at a place designated by the Collateral Agent which is, in the Collateral Agent’s opinion, reasonably convenient to the Collateral Agent and such Loan Party, whether at the time premises of such Loan Party or otherwise, it being understood that such Loan Party’s obligation so to deliver the Collateral is of the essence of this Agreement and place that, accordingly, upon application to which it was so adjourned. To a court of equity having jurisdiction, the maximum Collateral Agent shall be entitled to a decree requiring specific performance by such Loan Party of such obligation; (ii) to the extent permitted by lawapplicable Law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against premise where any of the Secured Party arising because the price at which Collateral is or may be located, and without charge or liability to any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public saleLoan Party, even if the Secured Party accepts the first offer received seize and does not offer remove such Collateral from such premises; (iii) have access to more than one offeree. The Secured Party may disclaim and use such Loan Party’s books and records relating to the Collateral; and (iv) prior to the disposition of the Collateral, store or transfer it without charge in or by means of any warrantystorage or transportation facility owned or leased by such Loan Party, as process, repair or recondition it or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Collateral Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of use without charge any Intellectual Property or technical process used by such sale Loan Party. The Collateral Agent may also render any or other disposition.
(c) If the Secured Party sells any all of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party unusable at any Loan Party’s premises and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay may dispose of such Collateral on such premises without liability for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale rent or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14costs.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, if any Event of Default has occurred and is continuing:
(i) the Collateral Agent may (subject to the express terms of any valid and enforceable restriction in favor of a Person who is not a Group Company that prohibits, requires any consent, or establishes any other conditions for, a license thereof) license, or sublicense, whether general, special or otherwise, and whether on an exclusive (if consistent with past business practices) or non-exclusive basis, any Patents, Trademarks or Copyrights included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its sole and commercially reasonable discretion determine;
(ii) the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time, enforce (and shall have the exclusive right to enforce) against any Licensee or sublicensee all rights and remedies of any Loan Party in, to and under any License and take or refrain from taking any action under any provision thereof, and each Pledgor Loan Party hereby releases the Collateral Agent and each of the Finance Parties from, and agrees thatto hold the Collateral Agent and each of the Finance Parties free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto;
(iii) upon request by the Collateral Agent, each Loan Party will use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor or sublicensor of each License to effect the assignment of all of such Loan Party’s right, title and interest thereunder to the Collateral Agent or its designee and will execute and deliver to the Collateral Agent a power of attorney, in form and substance reasonably satisfactory to the Collateral Agent, for the implementation of any lease, assignment, License, sublicense, grant of option, sale or other disposition of a Patent, Trademark or Copyright; and
(iv) the Collateral Agent may direct each Loan Party to refrain, in which event each such Loan Party shall refrain, from using or practicing any Trademark, Patent or Copyright in any manner whatsoever, directly or indirectly, and shall, if requested by the Collateral Agent, change such Loan Party’s name to eliminate therefrom any use of any Trademark and will execute such other and further documents as the Collateral Agent may request to further confirm this change and transfer ownership of the Trademarks, Patents, Copyrights and registrations and any pending applications therefor to the Collateral Agent.
(f) In the event of any disposition following the occurrence and during the continuation continuance of any Event of Default of any Patent, Trademark or Copyright pursuant to this Article V, each Loan Party shall supply its know-how and expertise relating to the manufacture and sale of the products or services bearing Trademarks or the products, services or works made or rendered in connection with or under Patents, Trademarks or Copyrights, and its customer lists and other records relating to such Patents, Trademarks or Copyrights and to the distribution of said products, services or works, to the Collateral Agent.
(g) If any Event of Default has occurred and is continuing, the Collateral Agent, instead of exercising the power of sale conferred upon it pursuant to this Section 5.02, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction, and may in addition institute and maintain such suits and proceedings as the Collateral Agent may deem appropriate to protect and enforce the rights vested in it by this Agreement.
(h) If any Event of Default has occurred and is continuing, the Collateral Agent shall, to the extent permitted by applicable Law, without notice to any Loan Party or any party claiming through any Loan Party, without regard to the solvency or insolvency at such time of any Person then liable for the payment of any of the Finance Obligations, without regard to the then value of the Collateral and without requiring any bond from any complainant in such proceedings, be entitled as a matter of right to the appointment of a receiver or receivers (who may be the Collateral Agent) of the Collateral or any part thereof, and of the profits, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to the entry of an Event order directing that the profits, revenues and other income of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all property constituting the whole or any part of the Collateral by a private placementbe segregated, restricting sequestered and impounded for the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion benefit of the Collateral pursuant Agent and the Finance Parties, and each Loan Party irrevocably consents to this Section, each Pledgor agrees that, upon request the appointment of such receiver or receivers and to the Secured Party, entry of such Pledgor will, at its own expense:order.
(i) use its best efforts Each Loan Party agrees, to execute and deliverthe extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, moratorium, turnover or redemption law, or any Law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force which may delay, prevent or otherwise affect the performance or enforcement of this Agreement, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, each Loan Party hereby waives all benefit or advantage of all such instruments and documentsLaws. Each Loan Party covenants that it will not hinder, and delay or impede the execution of any power granted to do so the Collateral Agent or cause to be done all such any other acts and things, as may be necessary or, Finance Party in the opinion of the Secured any Finance Document.
(j) Each Loan Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses whichextent it may lawfully do so, in the opinion on behalf of the Secured Partyitself and all who claim through or under it, are necessary including, without limitation, any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or pursuant to judicial proceedings or under any foreclosure or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions enforcement of this Section and that such failure would not be adequately compensable in damagesAgreement, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges consents and agrees that all of the Collateral may at any such sale be offered and sold as an entirety.
(k) Each Loan Party waives, to the extent permitted by Law, presentment, demand, protest and any notice of any kind (except the notices expressly required hereunder or in exercising the other Finance Documents) in connection with this Agreement and any rights under or action taken by the Collateral Agent with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents Collateral Agent may, in addition to exercise) any or all of the other rights and remedies available granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the Secured Party may exercise
right to give instructions or a notice of sole control to an issuer subject to an Issuer Control Agreement): (i) exercise on behalf of the Secured Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of lawLaw) to or upon any Loan Party or any other Person (all of which demands and/or notices are hereby waived by each Loan Party), (A) apply all cash, if any, then held by it as Collateral as specified in Section 6.07 hereof and (B) if there shall be no such cash or if such cash shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels (which need not be in round lots) at public or private salesale or at broker’s board or on any securities exchange, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonablereasonably satisfactory.
(b) If any Event of Default has occurred and is continuing, irrespective the Collateral Agent shall give each Loan Party not less than 10 days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof being sold, will first be offered for sale, (iii) in the case of a private sale, state the day after which such sale may be consummated, (iv) contain the information specified in Section 9-613 of the UCC, (v) be authenticated and (vi) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of Law under the UCC. The Collateral Agent and each Loan Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Loan Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable lawLaw, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Loan Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or reasonably advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with Law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary bankers hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy be retained by the Collateral or any part thereof for cash, from a limited number of investors reasonably believed Agent until the selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested purchaser thereof, but the Collateral Agent shall not incur any liability in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one case of the offers shall be deemed failure of such purchaser to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of take up and pay for the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orsold and, in the opinion case of the Secured Partyany such failure, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to may again be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize sold upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collaterallike notice.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the 1933 Act and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Pledgor will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorPledgor which may be waived, and each Pledgor hereby waives (Pledgor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Notwithstanding any provision of this Pledge Agreement to the Collateral pursuant to this Sectioncontrary, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause enforcement of the Subject Issuers security interest granted hereby in the Pledged Securities and the directors exercise of any right or remedy with respect to any of the shares of Pledged Securities and officers thereof the grant of any pledge pursuant to execute and deliverSection 5(c) shall be subject to prior approval of the various automobile franchisors with whom the Pledgor or any of its Affiliates has franchise agreements pursuant to which such enforcement, all or exercise of any remedy or right, or grant, without prior approval from such instruments and documents, and to do so or cause to be done all such other acts and things, as automobile franchisors may be necessary or, result in the opinion termination of the Secured Party, desirable to register one or more of such Collateral under the provisions of the Securities Act, franchise agreements and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers enforcement of the security interest granted hereby in the shares of UnitedAuto Finance Inc. pledged hereunder and the directors and officers thereof exercise of any right or remedy with respect thereto shall be subject to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion prior consent of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance requisite financing parties with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its whom UnitedAuto Finance Inc. has financing agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect set forth on Schedule IV attached hereto to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling such enforcement or exercise of any remedy or right without prior approval from such financing parties may result in a default under one or more of the Collateralsuch agreements.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party :
(a) The Collateral Agent may exercise (in respect of the Collateral, in addition to any other rights and remedies provided for herein or cause its agents otherwise available to exercise) any or it, all of the rights and remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party upon default under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercisedUniform Commercial Code applies to the affected Collateral), and also may (i) take absolute control of the Collateral, including, without limitation, transfer into the Collateral Agent's name or into the name of its nominee or nominees (to the extent the Collateral Agent has not theretofore done so) and thereafter receive, for the benefit of the Collateral Agent, all payments made thereon, give all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, (ii) all the powers given by section 30 require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Conveyancing Act 1983 Collateral Agent forthwith, assemble all or part of Bermuda (its respective Collateral as directed by the Conveyancing Act ) with respect Collateral Agent and make it available to the Collateral Agent at a place or places to be designated by 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 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 Collateral andGrantor in respect of such occupation, in addition, the Secured Party may, and (iii) without being required to give any notice, notice except as herein provided specified below and without any obligation to prepare or as may be required by mandatory provisions of lawprocess the Collateral for sale, sell, or otherwise dispose of (A) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s Collateral Agent's offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially 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, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining. Each Grantor agrees that, to the extent necessary under applicable notice of sale or any other disposition of its respective Collateral shall be required by law, at least ten (10) days' notice to any Grantor of the prior approval time and place of such any public sale or the time after which any private sale or other disposition by the Governmental Authority having jurisdiction with respect of its respective Collateral is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the The Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers Agent shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale or other disposition of any Collateral regardless of notice of sale having been given. The Secured Party Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Each Grantor hereby waives any claim claims against the Secured Party Parties arising because by reason of the fact that the price at which any its respective Collateral may have been sold at such a private sale was less than the price that which might have been obtained at a public salesale or was less than the aggregate amount of the Obligations, even if the Secured Party Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree, and waives all rights that any Grantor may have to require that all or any part of such Collateral be marshaled upon any sale (public or private) thereof. The Secured Party Each Grantor hereby acknowledges that (i) any such sale of its respective Collateral by the Collateral Agent shall be made without warranty, (ii) the Collateral Agent may specifically disclaim any warrantywarranties of title, as to title possession, quiet enjoyment or as to any other matter, in connection with such sale or other dispositionthe like, and its doing so (iii) such actions set forth in clauses (i) and (ii) above shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given of Collateral. In addition to the relevant Pledgor(sforegoing, (1) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party upon written notice to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of Grantor from the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence Agent after and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation continuance of an Event of Default, such Grantor shall cease any use of the Secured Party may, subject to applicable law, from time to time attempt to sell all Intellectual Property or any part of the Collateral by a private placementtrademark, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing patent or copyright similar thereto for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested purpose described in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable theretonotice;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Administrative Agent may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in any order and in any combination, including to collect any and all Secured Obligations from the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Administrative Agent may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective satisfactory. The Administrative Agent shall give the Borrower not less than ten days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Each Grantor agrees that any such sales on notice constitutes “reasonable notification” within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) The Administrative Agent may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Each Grantor agrees during an Event of Default to execute and deliver such documents and take such other action as the Administrative Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of the Grantors. To the extent permitted by law) , each Grantor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum Collateral on credit or for future delivery, such Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. The Grantors shall remain liable for any deficiency.
(c) For the purpose of enforcing any and all rights and remedies under this Agreement, the Administrative Agent may (i) require any Grantor to, and each Grantor agrees that it will, at the joint and several expense of the Grantors, and upon the request of the Administrative Agent, forthwith assemble all or any part of its Collateral as directed by the Administrative Agent and make it available at a place designated by the Administrative Agent which is, in the Administrative Agent’s opinion, reasonably convenient to the Administrative Agent and such Grantor, whether at the premises of such Grantor or otherwise, (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against the Secured Party arising because the price at which premise where any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral is or may be located and, without charge or liability to more than one offeree. The Secured Party may disclaim the Administrative Agent, seize and remove such Collateral from such premises, (iii) have access to and use such Grantor’s books and records, computers and software relating to the Collateral, and (iv) prior to the disposition of any warrantyof the Collateral, as store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by such Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Administrative Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of use without charge any trademark, trade name, copyright, patent or technical process used such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth hereinGrantor.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing:
(i) the Administrative Agent may (without assuming any obligations or liability thereunder), the Secured Party may, subject to applicable law, at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all rights and remedies of any Grantor in, to and under any Licenses and take or refrain from taking any part of action under any thereof, and each Grantor hereby releases the Collateral Administrative Agent from, and agrees to hold the Administrative Agent free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto except for the Administrative Agent’s gross negligence or willful misconduct as determined by a private placementfinal and nonappealable decision of a court of competent jurisdiction; and
(ii) upon request by the Administrative Agent, restricting each Grantor agrees to execute and deliver to the bidders Administrative Agent powers of attorney, in form and prospective purchasers substance satisfactory to those who will represent and agree that they are purchasing the Administrative Agent, for investment only and not for distributionthe implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request Grantor shall supply its know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents or Copyrights, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Intellectual Property and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 1 contract
Remedies Upon Event of Default. (aA) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of (i) withdraw all cash held in the Collateral Accounts and apply such cash and other cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or if such cash shall be insufficient to pay all the Secured Obligations of any Lien Grantor in full, sell the Collateral of such Lien Grantor or any part thereof in one or more parcels at public or private sale, at sale or any exchange, broker s broker's board or at on any of the Secured Party s offices or elsewheresecurities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type that is the subject of widely distributed standard price quotations, at any private sale). The Collateral Agent is authorized, in connection with any such sale, if it deems it advisable so to do, to restrict the prospective bidders on or purchasers of any of the securities included in the Collateral to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such securities, to cause to be placed on any security included in the Collateral a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provisions of said Act, and to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Collateral Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Lien Grantor agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorLien Grantor that may be waived, and each Pledgor hereby waives (Lien Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 10 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral or the portion thereof so being sold will first be offered for sale at such board or exchange and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum extent permitted Collateral on credit or for future delivery, the Collateral so sold may be retained by lawthe Collateral Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Collateral Agent shall not incur any claim against liability in case of the Secured Party arising because failure of such purchaser to take up and pay for the price at which Collateral so sold and, in case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Collateral Agent, instead of exercising the power of sale herein conferred upon it, may disclaim proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to any other matter, in connection with such sale decree of a court or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness courts of such sale or other dispositioncompetent jurisdiction.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eB) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Collateral Agent may (i) require each Lien Grantor to, and each Lien Grantor agrees that it will, at such time its expense and upon the request of the Collateral Agent, forthwith assemble all or any part of the Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Collateral Agent and remediesmake it available at a place designated by the Collateral Agent that is, each Pledgor hereby grants in its opinion, reasonably convenient to the Secured Party an irrevocable license Collateral Agent and such Lien Grantor, whether at the premises of such Lien Grantor or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premise where any of the Collateral consisting is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use such Lien Grantor's books and records relating to the Collateral and (iv) prior to the disposition of Intellectual Property now the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such PledgorLien Grantor, process, repair or recondition it or otherwise prepare it for disposition in any manner and including to the extent the Collateral Agent deems appropriate and, in connection with such license access to preparation and disposition, use without charge any Trademark, Copyright or Patent owned or used by the Grantor. The Collateral Agent may also render any or all media in which any of the licensed items Collateral unusable at the Grantor's premises and may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use dispose of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense Collateral on such premises without liability for rent or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcosts.
(fC) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing, the Secured Party mayCollateral Agent may (without assuming any obligations or liability thereunder), subject to applicable law, at any time and from time to time attempt to sell all or any part of time, enforce (and shall have the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its exclusive right to sell enforce) against any licensor, licensee or sublicensee all rights and remedies of any Lien Grantor in, to and under any Patent Licenses, Trademark Licenses or Copyright Licenses and take or refrain from taking any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral action under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electsthereof, and each Pledgor waives Lien Grantor hereby releases the Collateral Agent and each of the other Secured Parties from, and agrees to hold the Collateral Agent and each of the other Secured Parties free and harmless from and against, any right to require the marshaling claims arising out of any lawful action so taken or omitted to be taken with respect thereto, except any such claim to the extent that it arises solely as the result of the Collateralgross negligence or willful misconduct of any Secured Party.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be is continuing, the then Secured Party may exercise Party, at its option, without demand, presentment, notice of acceleration, intention to accelerate, or other notice (or cause its agents to exercisewhich are fully waived) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercisemay:
(i) exercise all the rights of a secured party under the UCC Code (whether or not the Code is in effect in the jurisdiction where such rights are exercised) and , unless prohibited by applicable law), under other applicable law, or at equity.
(ii) all apply the powers given cash, if any, then held by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or Collateral as may be required by mandatory provisions of law, sell, or otherwise dispose specified in Section 5.5.
(iii) sell all of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on credit upon credit, or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may reasonably deem commercially reasonablesatisfactory. Upon Secured Party’s demand, irrespective of each Pledgor will take all steps necessary to prepare the impact of Collateral for and otherwise assist in any such sales on the market price proposed disposition of the Collateral; provided that the right . Any holder of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Indebtedness may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all if the Collateral is of any part a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if the subject Collateral is membership or partnership interest(s) or other Collateral that is the subject of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)immediately following paragraph, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall private sale) and thereafter hold the property sold same absolutely free from any right or claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights whatsoever kind. Any holder of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because Indebtedness shall have the price at which any Collateral may have been sold at such a private sale was less than right to offset the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and amount of its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants bid against an equal amount to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired Indebtedness held by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Actholder. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under that, because of the Securities Act of 1933, as amended, or any other laws or regulations, and for other reasons, there may be legal and/or practical restrictions or limitations affecting Secured Party in order any attempts to obtain dispose of certain portions of the maximum possible price Collateral and for the Collateralenforcement of their rights. Without limiting the generality of the foregoingFor these reasons, Secured Party is hereby authorized by each Pledgor agrees thatPledgor, but not obligated, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by at private sale, subject to investment letter or in any other manner which will not require the Collateral, or any part thereof, to be registered in accordance with the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder, or any other laws, at a reasonable price at such private placement, restricting sale or other distribution in the bidders and prospective purchasers to those who will represent and agree manner mentioned above. Each Pledgor understands that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers in its discretion approach a limited number of potential purchasers and that a sale under such circumstances may yield a lower price for the Collateral, or any part thereof, than would otherwise be obtainable if such Collateral were either afforded to buy a larger number of potential purchasers or registered or sold in the open market. Each Pledgor agrees that such private sale shall be deemed to have been made in a commercially reasonable manner, and that Secured Party has no obligation to delay the sale of any Collateral to permit the issuer thereof to register it for public sale under any applicable federal or state securities laws. Secured Party is authorized in connection with any such sale to (i) restrict the prospective bidders on or purchasers of any of the Collateral to parties who can provide reasonably satisfactory evidence of creditworthiness necessary to complete the purchase of the Collateral, and (ii) impose such other limitations or conditions in connection with any such sale as Secured Party reasonably deems necessary in order to comply with applicable law. Each Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party reasonably deems necessary in order that any such sale may be made in compliance with applicable law. Upon any such sale Secured Party shall have the right to deliver, assign, and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold absolutely free from any claim or right of any Pledgor of whatsoever kind, including any equity or right of redemption of any Pledgor. Each Pledgor, to the extent permitted by applicable law, hereby specifically waives all rights of redemption, stay, or appraisal which it has or may have under any law now existing or hereafter enacted. Each Pledgor agrees that ten days’ written notice from Secured Party to Pledgor of Secured Party’s intention to make any such public or private sale or sale at a broker’s board or on a securities exchange shall constitute “reasonable notification” within the meaning of Section 9-504(c) of the Code. Such notice shall (A) in case of a public sale, state the time and place fixed for such sale, (B) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such a sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered to sale at such board or exchange, and (C) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale, the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may reasonably determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold, and in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Without limiting the foregoing or imposing upon Secured Party any obligations or duties not required by applicable law, each Pledgor acknowledges and agrees that, in foreclosing upon any of the Collateral or exercising any other rights or remedies provided Secured Party hereunder or under applicable law, Secured Party may, but shall not be required to: (i) qualify or restrict prospective purchasers of the Collateral by requiring evidence of creditworthiness, and requiring the execution and delivery of confidentiality agreements or other documents and agreements as a condition to such prospective purchasers’ receipt of information regarding the Collateral or participation in any public or private foreclosure sale process; (ii) provide to prospective purchasers the relevant Company Agreement and business and financial information regarding Company available in the files of Secured Party at the time of commencing the foreclosure process, without the requirement that Secured Party obtain, or seek to obtain, any updated business or financial information or Company Agreement, or verify or certify to prospective purchasers the accuracy of any such business or financial information or Company Agreement; (iii) sell at foreclosure all, or a portion but not all, of the rights, titles, and interests of any Pledgor in any Company; it being further specifically acknowledged by each Pledgor that limitations or potential limitations on the transfer of certain Collateral under the respective Company Agreement or other applicable agreements or law may limit Secured Party’s right or ability to foreclose upon or sell certain rights, titles, and interests of such Pledgor in such Company; or (iv) offer for sale, and sell, membership or partnership interests either with, or without, first employing an appraiser, investment banker, or broker with respect to the evaluation of Collateral, the solicitation of purchasers for Collateral, or the manner of sale of Collateral.
(c) Secured Party shall have all rights, remedies, and recourse granted in the Credit Agreement and the other Loan Documents or existing at common law or equity (including specifically those granted by the Code), and such rights and remedies (i) shall be cumulative and concurrent, (ii) may be pursued separately, successively, or concurrently against any Pledgor and any party obligated to pay or perform the Secured Indebtedness, any of the Collateral, or any other security for any of the Secured Indebtedness, at the sole discretion of Secured Party, and (iii) may be exercised as often as occasion therefor shall arise, it being agreed by each Pledgor that the exercise or failure to exercise any such rights or remedies shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse.
(d) Notwithstanding a foreclosure upon any of the Collateral or exercise of any other remedy by Secured Party in connection with an Event of Default, no Pledgor shall be subrogated thereby to any rights of Secured Party against the Collateral or any part thereof other security for cash, from a limited number any of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the CollateralIndebtedness. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers No Pledgor shall be deemed based on any subrogation or other rights they may have to be a commercially reasonable method the owner of disposing any interest in any of the CollateralSecured Indebtedness unless and until all of the Secured Indebtedness has been indefeasibly paid to Secured Party and fully performed and discharged.
(ge) If the All recitals in any instrument of assignment or any other instrument executed by Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and incident to the related prospectuses whichsale, in the opinion of the Secured Partytransfer, are necessary assignment, or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so other disposition or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale utilization of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with hereunder shall be presumptive evidence of the provisions matters stated therein and all prerequisites of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements sale or other action contained in this Section may such recitals shall be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under presumed to have been performed or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralhave occurred.
Appears in 1 contract
Sources: Revolving Credit Agreement (Invesco Real Estate Income Trust Inc.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Lender may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in the jurisdiction where such rights are exercised) any order and (ii) in any combination, including to collect any and all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Secured Obligations from Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Lender may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Lender may deem commercially reasonable, irrespective satisfactory. The Lender shall give the Borrower not less than ten (10) days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Grantors agree that any such sales on notice constitutes “reasonable notification” within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) The Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Grantors agree during an Event of Default to execute and deliver such documents and take such other action as the Lender reasonably deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Lender shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of Grantors. To the extent permitted by applicable law) , Grantors hereby specifically waive all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Lender may fix in the notice of such sale. At any such sale Collateral may be sold in one (1) lot as an entirety or in separate parcels, as the Lender may determine. The Lender shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Lender may, without notice or publication (other than any notices required by this Section 8 or by applicable law), 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum Collateral on credit or for future delivery, such Collateral so sold may be retained by the Lender until the selling price is paid by the purchaser thereof, but the Lender shall not incur any liability in case of the failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Grantors shall remain liable for any deficiency.
(c) For the purpose of enforcing any and all rights and remedies under this Agreement, the Lender may (i) require Grantors to, and Grantors agree that it will, at the joint and several expense of Grantors, and upon the request of the Lender, forthwith assemble all or any part of its Collateral as directed by the Lender and make it available at a place designated by the Lender which is, in the Lender’s opinion, reasonably convenient to the Lender and Grantors, whether at the premises of Grantors or otherwise, (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against the Secured Party arising because the price at which premise where any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral is or may be located and, without charge or liability to more than one offeree. The Secured Party may disclaim the Lender, seize and remove such Collateral from such premises, (iii) have access to and use each Grantor’s books and records, computers and software (subject to the terms of applicable licenses) relating to the Collateral, and (iv) prior to the disposition of any warrantyof the Collateral, as store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by any Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Lender deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale use without charge any trademark, trade name, copyright, patent or other disposition.
(c) If the Secured Party sells technical process used by any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth hereinGrantor.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders Default has occurred and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expenseis continuing:
(i) use its best efforts the Lender may (without assuming any obligations or liability thereunder), at any time and from time to execute time, enforce (and delivershall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of Grantors in, to and under any Licenses and take or refrain from taking any action under any thereof, and cause Grantors hereby release the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documentsLender from, and agrees to do hold the Lender free and harmless from and against any claims arising out of, any lawful action so taken or cause omitted to be done all such other acts taken with respect thereto except for the Lender’s gross negligence or willful misconduct as determined by a final and things, as may be necessary or, in the opinion nonappealable decision of the Secured Party, desirable to register such Collateral under the provisions a court of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;competent jurisdiction; and
(ii) use its best efforts upon request by the Lender, Grantor agrees to execute and deliver, and cause deliver to the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orLender powers of attorney, in form and substance satisfactory to the opinion Lender, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property, in each case subject to the terms of the Secured Partyapplicable License. In the event of any such disposition pursuant to this Section 8, desirable Grantors shall supply their know-how and expertise relating to qualify the Collateral under state securities laws or Blue Sky laws manufacture and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by products bearing Trademarks or the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do products or cause to be done all such other acts and things as may be necessary or, services made or rendered in the Secured Party s opinion, desirable to facilitate such sale of the Collateral connection with Patents or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damagesCopyrights, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges customer lists and agrees that in exercising any rights under or with respect other records relating to such Intellectual Property and to the Collateraldistribution of said products, to the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralLender.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Pledgee may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Pledgee may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Pledged Collateral as specified in the Loan Agreement and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Obligations in full, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Pledgee may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Pledgee may be the purchaser of any or all of the Pledged Collateral so sold at any public sale (or, if the Pledged Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Pledgee is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of securities constituting Pledged Collateral to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such pledged securities, (ii) to cause to be placed on certificates for any or all securities constituting Pledged Collateral or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and as Pledgee deems necessary or advisable in order to comply with said Act or any other law provided that Pledgee shall be entitled, for the purpose of bidding and making settlement or payment give Pledgor not less than ten days' prior written notice of the purchase price for all time and place of any sale or other intended disposition of any portion of the Pledged Collateral except any Pledged Collateral which is of a type customarily sold at on a recognized market. Pledgee and Pledgor agree that such notice constitutes "reasonable notification" within the meaning of Section 9-504(3) of the UCC. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Pledgee deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by Pledgee shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Pledged Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Pledged Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of Pledgor which may be waived, and Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Pledged Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Pledgee may fix in the notice of such sale. At any such sale the Pledged Collateral may be sold in one lot as an entirety or in separate parcels, as Pledgee may determine. Pledgee shall not be obliged obligated to make any such sale of Collateral regardless of pursuant to any such notice. Pledgee may, without notice of sale having been given. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Pledged Collateral on credit or for future delivery, the Pledged Collateral so sold may be retained by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee shall not incur any liability in case of the failure of such purchaser to take up and pay for the Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral may again be sold upon like notice. Pledgee, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Pledged Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Irrevocable Proxy and Pledge Agreement (Anchor Glass Container Corp /New)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Loan Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale and shall be entitledthe Agent (as administrative agent for and representative of the Secured Parties), 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, shall be entitled to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party Agent sells any of the Collateral upon credit, the Pledgors Grantors will be credited only with payment actually made by the purchaser, received by the Secured Party Agent and applied in accordance with Section 12 14 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14Applicable Law. Each Grantor hereby agrees that 10 days’ written notice of any proposed sale or other disposition of Collateral by Agent shall be reasonable.
(e) For the purpose of enabling the Secured Party Agent to exercise rights and remedies under this Agreement (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Secured Party Agent shall be lawfully entitled to exercise such rights and remedies, each Pledgor Grantor hereby grants to the Agent, for the benefit of the Secured Party Parties, an irrevocable irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to the Grantors and subject to any prior rights granted by such PledgorGrantor to third parties), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs (solely to the extent permitted by the relevant licenses therefor) used for the compilation or printout thereof; provided, however, that any trademarks or service marks licensed pursuant to the foregoing may be used only in connection with goods and services of similar type and similar or greater quality than those theretofore sold by such Grantor under such trademark or service ▇▇▇▇. The use of such license by the Secured Party Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided provided, however, that any license, license or sublicense or other transaction entered into by the Secured Party Agent in accordance herewith shall be binding upon such Pledgor each Grantor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that For the sale by purpose of enabling the Secured Party of any Collateral pursuant Agent to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges exercise rights and agrees that remedies under this Agreement (including in order to protect take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Secured Party s interests it may Agent shall be necessary lawfully entitled to sell exercise such rights and remedies, each Grantor hereby grants to the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another mannerAgent, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request benefit of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicableParties, an earnings statement which will satisfy the provisions irrevocable license (without payment of Section 11(arent or other compensation to such Grantor) of the Securities Act; and
(iv) do to use, operate and occupy all real Property owned, operated, leased, subleased or cause to be done all otherwise occupied by such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralGrantor.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (School Specialty Inc)
Remedies Upon Event of Default. (aA) If an Event of Default shall have has occurred and be continuingis continuing under the Credit Agreement, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Lenders all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply cash, if any, then held by it as Collateral as specified in Section 8 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Grantors will execute and deliver such documents and take such other action as the Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorGrantor which may be waived, and each Pledgor hereby waives (Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 5 shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gB) If For the Secured Party shall determine to exercise its right to sell purpose of enforcing any and all or rights and remedies under this Agreement the Agent may (i) require any portion of the Collateral pursuant to this SectionGrantor to, and each Pledgor Grantor agrees that, upon request of the Secured Party, such Pledgor that it will, at its own expense:
(i) use its best efforts to execute expense and deliverupon the request of the Agent, forthwith assemble all or any part of the Collateral as directed by the Agent and cause make it available at a place designated by the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orAgent which is, in the opinion of the Secured Partyits opinion, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and reasonably convenient to the related prospectuses whichAgent and Grantors, in whether at the opinion premises of the Secured Partyany Grantor or otherwise, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute the extent permitted by applicable law, enter, with or without process of law and deliverwithout breach of the peace, any premise where any of the Collateral is or may be located, and cause the Subject Issuers without charge or liability to it seize and the directors remove such Collateral from such premises, (iii) have access to and officers thereof use Grantors' books and records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and (iv) prior to obtain all necessary approvals from relevant Governmental Authorities for the sale disposition of the Collateral, as requested store or transfer it without charge in or by means of any storage or transportation facility owned or leased by any Grantor, process, repair or recondition it or otherwise prepare it for disposition in any manner and to the Secured Party;
(iii) cause extent the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; Agent deems appropriate and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinionconnection with such preparation and disposition, desirable to facilitate such sale of the Collateral use without charge any trademark, trade name, copyright, patent or technical process used by any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralGrantor.
Appears in 1 contract
Sources: Security Agreement (Thermatrix Inc)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its sub-agents to exercise) any or all of the remedies available to it (or to such sub-agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Administrative Agent may exercise on behalf of the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Personal Property Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, sell or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s broker’s board or at any of the Secured Party s Administrative Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable lawApplicable Law, the any Secured Party may be the purchaser of any or all of the Collateral at any such sale and (with the consent of the Administrative Agent, which may be withheld in its commercially reasonable discretion) 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any such sale of Collateral by the Secured Party Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party Administrative Agent or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any PledgorGrantor, and each Pledgor Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party Administrative Agent shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor Grantor hereby waives any claim against the any Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party Administrative Agent accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party Administrative Agent may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party Administrative Agent sells any of the Collateral upon credit, the Pledgors Grantors will be credited only with payment actually made by the purchaser, received by the Secured Party Administrative Agent and applied in accordance with Section 12 15 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party Administrative Agent may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(sGrantor(s) as (and if) required by applicable law and/or Section 1417 hereof.
(e) For the purpose of enabling the Secured Party Administrative Agent to exercise rights and remedies under this Agreement at such time as the Secured Party Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Pledgor Grantor hereby grants to the Secured Party Administrative Agent an irrevocable (until all of the Release Conditions have been satisfied) license (exercisable without payment of royalty or other compensation to the Grantors and subject to any prior rights granted by such PledgorGrantor to third parties), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such PledgorGrantor, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs (solely to the extent permitted by the relevant licenses therefor) used for the compilation or printout thereof. The use of such license by the Secured Party Administrative Agent may be exercised only upon the occurrence and during the continuation of an Event of Default; provided provided, however, that any license, sublicense or other transaction entered into by the Secured Party Administrative Agent in accordance herewith shall be binding upon such Pledgor each Grantor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the The foregoing provisions of this Section and that shall not apply to Real Property Collateral other than Fixtures as to which such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each provisions shall apply to the extent such Fixtures are governed by Article 9 of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralUCC.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Inovalon Holdings, Inc.)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Administrative Agent may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in any order and in any combination, including to collect any and all Secured Obligations from the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Administrative Agent may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective satisfactory. The Administrative Agent shall give the Borrower not less than ten days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Each Grantor agrees that any such sales on notice constitutes “reasonable notification” within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) The Administrative Agent may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Each Grantor agrees during an Event of Default to execute and deliver such documents and take such other action as the Administrative Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of the Grantors. To the extent permitted by law) , each Grantor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Administrative Agent may, without notice or publication (other than any notices required by this Section 8 or by applicable law), 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum Collateral on credit or for future delivery, such Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. The Grantors shall remain liable for any deficiency.
(c) For the purpose of enforcing any and all rights and remedies under this Agreement, the Administrative Agent may (i) require any Grantor to, and each Grantor agrees that it will, at the joint and several expense of the Grantors, and upon the request of the Administrative Agent, forthwith assemble all or any part of its Collateral as directed by the Administrative Agent and make it available at a place designated by the Administrative Agent which is reasonably convenient to the Administrative Agent and such Grantor, whether at the premises of such Grantor or otherwise, (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against the Secured Party arising because the price at which premise where any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral is or may be located and, without charge or liability to more than one offeree. The Secured Party may disclaim the Administrative Agent, seize and remove such Collateral from such premises, (iii) have access to and use such Grantor’s books and records, computers and software (subject to the terms of applicable licenses) relating to the Collateral, and (iv) prior to the disposition of any warrantyof the Collateral, as store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by such Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Administrative Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of use without charge any trademark, trade name, copyright, patent or technical process used such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth hereinGrantor.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing:
(i) the Administrative Agent may (without assuming any obligations or liability thereunder), the Secured Party may, subject to applicable law, at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all rights and remedies of any Grantor in, to and under any Licenses and take or refrain from taking any part action under any thereof, and each Grantor hereby releases the Administrative Agent from, and agrees to hold the Administrative Agent free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto except for the Administrative Agent’s gross negligence, bad faith or willful misconduct as determined by a final and nonappealable decision of a court of competent jurisdiction; and
(ii) upon request by the Administrative Agent, each Grantor agrees to execute and deliver to the Administrative Agent powers of attorney, in form and substance satisfactory to the Administrative Agent, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property, in each case subject to the terms of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distributionapplicable License. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request Grantor shall supply its know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents or Copyrights, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Intellectual Property and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 1 contract
Sources: Security Agreement (Stanley, Inc.)
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents Collateral Agent may, in addition to exercise) any or all of the other rights and remedies available granted to it (in this Agreement and in any other agreement securing, evidencing or relating to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
Finance Obligations: (i) exercise on behalf of the Finance Parties all the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, (ii) without being required to give demand of performance or other demand or notice of any notice, kind (except as herein provided or as may be required by mandatory provisions of law) to or upon any Loan Party or any other Person (all of which demands and/or notices are hereby waived by each Loan Party), (A) apply all cash, if any, then held by it as Collateral as specified in Section 6.07 hereof and (B) if there shall be no such cash or if such cash shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels (which need not be in round lots) at public or private salesale or at broker’s board or on any securities exchange, at any exchange, broker s board or at any office of the Secured Party s offices Collateral Agent or elsewhereelsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, at such time or times delivery without assumption of any credit risk and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective satisfactory.
(b) The Collateral Agent shall give each Loan Party not less than 10 days’ prior notice of the impact time and place of any such sales on the market price sale or other intended disposition of any of the Collateral, except any Collateral which threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof being sold, will first be offered for sale, (iii) in the case of a private sale, state the day after which such sale may be consummated, (iv) contain the information specified in Section 9-613 of the UCC, (v) be authenticated and (vi) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Loan Party agree that such notice constitutes reasonable notification within the right meaning of Section 9-611 of the Secured UCC. Except as otherwise provided herein, each Loan Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaininghereby waives, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, notice and judicial hearing in connection with the Secured Collateral Agent’s taking possession or disposition of any of the Collateral.
(c) The Collateral Agent or any Finance Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Loan Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind. Any such public sale shall be held at such time or times within ordinary bankers hours and at such place or places as the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or Collateral Agent may at any time fix in the future have under notice of such sale. At any rule of law such sale, the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin such parcels, as the Collateral Agent may determine. The Secured Party Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy be retained by the Collateral or any part thereof for cash, from a limited number of investors reasonably believed Agent until the selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested purchaser thereof, but the Collateral Agent shall not incur any liability in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one case of the offers shall be deemed failure of such purchaser to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of take up and pay for the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orsold and, in the opinion case of the Secured Partysuch failure, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to may again be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize sold upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collaterallike notice.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Administrative Agent may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in any order and in any combination, including to collect any and all Secured Obligations from the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Administrative Agent may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective satisfactory. The Administrative Agent shall give the Borrower not less than ten days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Each Grantor agrees that any such sales on notice constitutes “reasonable notification” within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) The Administrative Agent may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Each Grantor agrees during an Event of Default to execute and deliver such documents and take such other action as the Administrative Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of the Grantors. To the extent permitted by law) , each Grantor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum extent permitted Collateral on credit or for future delivery, such Collateral so sold may be retained by lawthe Administrative Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Administrative Agent shall not incur any claim against liability in case of the Secured Party arising because the price at which failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Administrative Agent, instead of exercising the power of sale herein conferred upon it, may disclaim proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell Collateral, or any warrantyportion thereof, as to title under a judgment or as to decree of a court or courts of competent jurisdiction. The Grantors shall remain liable for any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other dispositiondeficiency.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon following the occurrence and during the continuation existence of an Event of Default; provided , the Administrative Agent may (i) require any Grantor to, and each Grantor agrees that it will, at the joint and several expense of the Grantors, and upon the request of the Administrative Agent, forthwith assemble all or any license, sublicense or other transaction entered into part of its Collateral as directed by the Secured Party Administrative Agent and make it available at a place designated by the Administrative Agent which is, in accordance herewith shall the Administrative Agent’s opinion, reasonably convenient to the Administrative Agent and such Grantor, whether at the premises of such Grantor or otherwise, (ii) to the extent permitted by applicable law, enter, with or without process of law and without breach of the peace, any premise where any such Collateral is or may be binding upon located and, without charge or liability to the Administrative Agent, seize and remove such Pledgor notwithstanding Collateral from such premises, (iii) have access to and use such Grantor’s books and records, computers and software relating to the Collateral, and (iv) prior to the disposition of any subsequent cure of an Event the Collateral, store or transfer such Collateral without charge in or by means of Defaultany storage or transportation facility owned or leased by such Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to the extent the Administrative Agent deems appropriate and, in connection with such preparation and disposition, use without charge any trademark, trade name, copyright, patent or technical process used such Grantor.
(fd) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing:
(i) the Administrative Agent may (without assuming any obligations or liability thereunder), the Secured Party may, subject to applicable law, at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all rights and remedies of any Grantor in, to and under any Licenses and take or refrain from taking any part of action under any thereof, and each Grantor hereby releases the Collateral Administrative Agent from, and agrees to hold the Administrative Agent free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto except for the Administrative Agent’s gross negligence or willful misconduct as determined by a private placementfinal and nonappealable decision of a court of competent jurisdiction; and
(ii) upon request by the Administrative Agent, restricting each Grantor agrees to execute and deliver to the bidders Administrative Agent powers of attorney, in form and prospective purchasers substance satisfactory to those who will represent and agree that they are purchasing the Administrative Agent, for investment only and not for distributionthe implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request Grantor shall supply its know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents or Copyrights, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Intellectual Property and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 1 contract
Sources: Security Agreement (Easylink Services International Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall will have occurred and be continuingoccurred, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party Secured Party under the Purchase Agreement and the UCC (whether or not the UCC is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral in the manner specified in Section 8, and (ii) if there will be no such cash or otherwise dispose of if such cash will be insufficient to pay all the Collateral obligations in full, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective satisfactory. Collateral Agent may require Debtor to assemble all or any part of the impact of Collateral and make it available to Collateral Agent at a place to be designated by Collateral Agent which is reasonably convenient. Collateral Agent and any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale Collateral Agent will have the right to deliver, assign 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall will hold the property Collateral so sold absolutely absolutely, free from any claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of Debtor. Debtor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party shall At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Collateral Agent may determine. Collateral Agent will not be obliged obligated to make such sale pursuant to any sale of such notice. Collateral regardless of Agent may, without notice of sale having been given. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Collateral Agent until the selling price is paid by the purchaser thereof, but Collateral Agent will not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Collateral Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders security interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Security Agreement (Vubotics Inc)
Remedies Upon Event of Default. (a) If an any Event of Default ------------------------------ under the Indenture or default hereunder (any such Event of Default or default being referred to in this Pledge Agreement as an "Event of Default") shall have ---------------- occurred and be continuing:
(a) The Trustee may, without notice to the Secured Party may exercise (Pledgor except as required by law and at any time or cause its agents from time to exercise) any or time, liquidate all Cash Equivalents and transfer all funds in the Initial Escrow and Pledge Account to the Paying Agent to apply such funds in accordance with Section 3.8 of the remedies available to it (or to such agents) under the Security DocumentsIndenture.
(b) Without limiting The Trustee and the generality Holders of the foregoingNotes shall have, if an Event in addition to all other rights given by law or by this Pledge Agreement or the Indenture, all of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies with respect to the Initial Collateral and the Subsequent Collateral of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) UCC. In addition, with respect to any Initial Collateral or Subsequent Collateral that shall then be in or shall thereafter come into the possession or custody of the Trustee, the Trustee may and, in addition, at the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose direction of the Collateral Holders of a majority in principal amount of the Notes then outstanding, shall appoint a broker or other expert to sell or cause the same to be sold at any part thereof in one broker's board or more parcels at public or private sale, in one or more sales or lots, at any exchange, such price or prices such broker s board or at any of the Secured Party s offices or elsewhereother expert may deem best, for cash, cash or on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact without assumption of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)credit risk. To the maximum extent permitted by applicable law, the Secured Party may be the The purchaser of any or all of the Initial Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Subsequent Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall thereafter hold the property sold absolutely same absolutely, free from any claim claim, encumbrance or right on the part of any kind whatsoever created by or through the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of Trustee will give the Pledgor reasonable notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed thereforof any public sale thereof, and such sale may, without further notice, be made at or of the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at after which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other intended disposition is to be made. Any sale of the Initial Collateral or the Subsequent 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 Initial Collateral and the Subsequent Collateral shall be deemed to be commercially reasonable. Any requirements of reasonable notice shall be met if such notice is mailed to the Pledgor as provided in Section 17.1 hereof at least ten (10) days before the time of the sale or disposition. The Trustee or any Holder of Notes may, in its own name or in the name of a designee or nominee, buy any of the Initial Collateral or the Subsequent Collateral at any public sale and, if permitted by applicable law, at any private sale. All expenses (including court costs and its doing so reasonable attorneys' fees, expenses and disbursements) of, or incident to, the enforcement of any of the provisions hereof shall not be considered adversely to affect recoverable from the commercial reasonableness proceeds of such the sale or other dispositiondisposition of the Initial Collateral or the Subsequent Collateral.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails The Pledgor further agrees to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its reasonable best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate make such sale or sales of all or any portion of the Initial Collateral or any part thereof the Subsequent Collateral pursuant to this Section 14 valid and binding and in compliance with any and all other applicable requirements of law. Each The Pledgor acknowledges further agrees that there is a breach of any of the covenants contained in this Section 14 will cause irreparable injury to the Trustee and the Holders of the Notes, that the Trustee and the Holders of the Notes have no adequate remedy at law for failure by it to comply with the provisions in respect of this Section such breach and, as a consequence, that each and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements every covenant contained in this Section may 14 shall be specifically enforced. Each of enforceable against the Pledgors acknowledges Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling Event of any of the CollateralDefault has occurred.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (American Cellular Corp /De/)
Remedies Upon Event of Default. (a) If an Subject to the rights of the holders of the Senior Secured Obligations, if any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Banks all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Junior Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (B) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (C) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Borrower will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorBorrower which may be waived, and each Pledgor hereby waives (the Borrower, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Junior Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Pledge Agreement (Rite Aid Corp)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell satisfactory. Any Bank or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party NML may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public salesale (or, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of if the Collateral so is of a type customarily sold and such purchaser in a recognized market or purchasers shall not be obligated to see to is of a type which is the application subject of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser widely distributed standard price quotations, at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedprivate sale). The Secured Party shall not be obliged to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matterAgent is authorized, in connection with any such sale sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness purchasers of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails Pledged Securities to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice a limited number of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those sophisticated investors who will represent and agree that they are purchasing for their own account for investment only and not for distribution. In doing sowith a view to the distribution or sale of any of such Pledged Securities, the Secured Party may solicit offers (B) to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done placed on certificates for any or all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable Pledged Securities or on any other securities pledged hereunder a legend to register the effect that such Collateral security has not been registered under the provisions Securities Act of 1933 and may not be disposed of in violation of the Securities provision of said Act, and (C) to cause impose such other limitations or conditions in connection with any such sale as the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are Collateral Agent deems necessary or desirable, all advisable in conformity order to comply with the requirements of the Securities said Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable other law. Each Pledgor acknowledges will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that any such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section sale may be specifically enforcedmade in compliance with law. Upon any such sale the Collateral Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each of the Pledgors acknowledges and agrees that in exercising purchaser at any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.such
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Company may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Company may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Company may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Company may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Company is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (ii) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Company deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Company deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Company shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any Pledgor which may be waived, and the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall not be obliged to make any sale (1) in case of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale may, without further notice, is to be made at and the time and place to day on which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, or the Secured Party may resell portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the samecase of a private sale, subject to state the same rights and duties set forth herein.
(d) Notice of any day after which such sale or other disposition may be consummated. Any such public sale shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement held at such time or times within ordinary business hours and at such place or places as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to Company may fix in the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 notice of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereofsale. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.At
Appears in 1 contract
Sources: Pledge Agreement (Lendingtree Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, continuing upon prior written notice to the Company:
(a) The Secured Party Parties may exercise (in respect of the Collateral, in addition to any other rights and remedies provided for herein or cause its agents otherwise available to exercise) any or it, all of the rights and remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party upon default under the UCC Code (whether or not in effect in the jurisdiction where such rights are exercisedCode applies to the affected Collateral), and also may (A) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s Parties’ offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Parties may deem commercially reasonable and/or (B) lease, license or dispose of the Collateral or any part thereof upon such terms as the Secured Parties may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining. Each Grantor agrees that, to the extent necessary under applicable notice of sale or any other disposition of its respective Collateral shall be required by law, at least ten (10) days’ notice to such Grantor of the prior approval time and place of such any public sale or the time after which any private sale or other disposition by the Governmental Authority having jurisdiction with respect of its respective Collateral is to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act be made shall not apply)constitute reasonable notification. To the maximum extent permitted by applicable law, the The Secured Party may be the purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers Parties shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale or other disposition of any Collateral regardless of notice of sale having been given. The Each Grantor hereby acknowledges that (i) any such sale of its respective Collateral by the Secured Party Parties shall be made without warranty, (ii) the Secured Parties may adjourn specifically disclaim any public warranties of title, possession, quiet enjoyment or private sale from time to time by announcement at the time and place fixed thereforlike, and (iii) such sale may, without further notice, be made at the time actions set forth in clauses (i) and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so (ii) above shall not be considered adversely to affect the commercial reasonableness of any such sale or other dispositionof Collateral.
(cb) If Any cash held by the Secured Party sells any of the Parties as Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, and all Cash Proceeds received by the Secured Party and applied Parties in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice respect of any such sale of or collection from, or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remediesrealization upon, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral shall be applied by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral Parties against all or any part thereof for cash, from a limited number of investors reasonably believed the Obligations in such order as the Secured Parties shall elect. Any surplus of such cash or Cash Proceeds held by the Secured Party Parties and remaining after the satisfaction in full of all of the Obligations shall be paid over to the Company or to whomsoever shall be institutional investors lawfully entitled to receive the same or other accredited investors who might be interested in purchasing as a court of competent jurisdiction shall direct.
(c) In the Collateral. If event that the proceeds of any such sale, collection or realization are insufficient to pay all amounts to which the Secured Party Parties are legally entitled, each Grantor shall solicit be liable for the deficiency, together with interest thereon at the highest rate specified in the Debentures for interest on overdue principal thereof or such offersother rate as shall be fixed by applicable law, then together with the acceptance costs of collection and the reasonable fees, costs, expenses and other client charges of any attorneys employed by the Secured Party of one of the offers shall be deemed Parties to be a commercially reasonable method of disposing of the Collateralcollect such deficiency.
(gd) If The Secured Parties may perform any and all of their duties and exercise their rights and powers hereunder by or through, or delegate any and all such rights and powers to, any one or more agents appointed by the Secured Party shall determine to exercise its right to sell all or any portion majority in interest (based on then-outstanding principal amounts of Debentures at the Collateral pursuant to this Section, each Pledgor agrees that, upon request time of such determination) of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralParties.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC Uniform Commercial Code (whether or not the Uniform Commercial Code is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral, and (ii) if there shall be no such cash or otherwise dispose if such cash shall be insufficient to pay all the Secured Obligations in full then, after ten (10) days written notice by the Secured Party to the Debtors of acceleration of the Collateral Secured Obligations, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party shall deem satisfactory. The Secured Party may deem commercially reasonable, irrespective require the Debtors to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral and make it available to the Secured Party s or the relevant Pledgor s obtaining, at a place to the extent necessary under applicable law, the prior approval of such sale or other disposition be designated by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party which is reasonably convenient. Any holder of an Obligation may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of the Debtors. The Secured Party shall give the Debtors ten (10) days’ prior written notice of its intention to make any such public or private sale or sale at a broker’s board or on a securities exchange. Such notice, in case of a public sale, shall state the part of any Pledgortime and place fixed for such sale, and each Pledgor hereby waives (in case of sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the extent permitted by law) all rights of redemptionday on which the Collateral, stay or appraisal that it now has the portion thereof so being sold, 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 Secured Party may at any time fix in the future have under notice of such sale. At any rule of law such sale the Collateral may be sold in one lot as an entirety or statute now existing or hereafter enactedin separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of notice of sale having been givensuch notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof, but the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one not incur any liability in case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gb) If The Secured Party, instead of exercising the Secured Party shall determine power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to exercise its right to foreclose the Security Interests and sell all the Collateral, or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. HIG covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right 7 183 to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any Lien, claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of HIG which may be waived, and each Pledgor hereby waives (HIG, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange or quotation system, state the board, exchange or quotation system at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Lets Talk Cellular & Wireless Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the rights and remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Code (whether or not the Code is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(a) apply the cash, if any, then held by it as Collateral in the manner specified in Section 11 hereof, and (b) if there shall be no such cash or otherwise dispose if such cash shall be insufficient to pay all of the Collateral Secured Obligations in full, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective satisfactory. The Secured Party may require the Debtor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject Collateral and make it available to the Secured Party s or the relevant Pledgor s obtaining, at a place to the extent necessary under applicable law, the prior approval of such sale or other disposition be designated by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 Secured Party. Any holder of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the a Secured Party Obligation may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold on a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold same, absolutely free from any right or claim of the Debtor of whatsoever kind. The Secured Party is authorized, at any such sale and shall sale, if it reasonably deems same to be entitledadvisable, for to restrict the purpose prospective bidders or purchasers 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, which could be subject to use federal or state securities laws to persons who will represent and apply all agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any part of such Collateral; and the Secured Obligations as Debtor hereby acknowledges that such restriction may result in a credit on account of lower price being obtained for the purchase price of subject Collateral, and the Debtor hereby waives any Collateral payable at such saleclaim arising therefrom. Upon any sale of Collateral by such sale, the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. sold.
(b) Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right on of the part Debtor of whatsoever kind (except for the rights of the Secured Party), including any Pledgor, and each Pledgor hereby waives (to equity or right of redemption of the Debtor. To the extent permitted by law) , the Debtor hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. and waives any requirement for the marshaling of any Collateral. The Secured Party shall give the Debtor not less than ten (10) days࿖ prior written notice of its intention to make any such public or private sale or sales at a broker’s board or on a securities exchange. Such notice, in case of a public sale, shall state the time and place fixed for such sale, and in case of sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof being sold, 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 Secured Party may fix in the notice of such sale. At any such sale, the Collateral may be sold in one lot as an entirety or in separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of notice of sale having been givensuch notice. The Secured Party may 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 therefor, for the sale. and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private In case of any࿖ sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Secured Party Collateral so sold may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed be retained by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing until the Collateral. If selling price is paid by the purchaser thereof; but the Secured Party shall solicit such offers, then not incur any liability in the acceptance by the Secured Party of one case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be deemed to be a commercially reasonable method of disposing of the Collateralsold upon like notice.
(gc) If The Secured Party, instead of exercising the Secured Party shall determine power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to exercise its right to foreclose the Security Interests and sell all the Collateral, or any portion thereof; under a judgment or decree of a court or courts of competent jurisdiction.
(d) In the event that the Secured Party, after the occurrence of an Event of Default, does not exercise his/her/its rights under this Agreement within thirty (30) days thereof, then Subscribers representing a majority in interest of the Collateral pursuant to this Section, each Pledgor agrees thattotal aggregate principal amount of the Loan shall have the right, upon request five (5) days written notice to the Debtor, to appoint a substitute secured party at which time the Secured Party’s rights under this Agreement shall automatically be assigned to the new secured party without any further action of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and Subscribers and/or the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in Debtor. Upon the opinion appointment of the Secured Partysubstitute secured party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in then the Secured Party s opinion, desirable executing this Agreement shall no longer have authority to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with enforce the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in Agreement. For purposes of this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral9(d), the Secured Party is under no obligation to marshal any Collateral and may shall be excluded for purposes of calculating a majority in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any interest of the Collateralaggregate amount of the Loan.
Appears in 1 contract
Sources: Security Agreement (Odyne Corp)
Remedies Upon Event of Default. (aA) If an Event of Default shall the Notes have occurred been declared, or have become, due and be continuingpayable and such declaration and its consequences have not been rescinded and annulled, the Secured Party may Trustee may, after notice to the Holders, and shall, upon direction by the Holders of not less than 25 percent in principal amount of Outstanding Notes, exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Holders all the rights of a secured party under the UCC (to the extent permitted by law, whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Trustee may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law: (i) withdraw all cash and Liquid Investments in the Cash Collateral Account and apply such monies, sellLiquid Investments and other cash, if any, then held by it as Collateral as specified in Section 10 hereof and (ii) if there shall be no such monies, Liquid Investments or otherwise dispose of cash or if such monies, Liquid Investments or cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Trustee may deem commercially reasonablesatisfactory. The Trustee, irrespective of the impact of or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Holder may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, or if otherwise permitted by applicable law, at any private sale). The Trustee is authorized, in connection with any such sale, if it deems it advisable so to do, to impose such limitations or conditions in connection with any such sale and shall be entitledas the Trustee deems necessary or advisable in order to comply with the UCC or any other law. The Trustee is authorized, for in connection with any such sale, if it deems it advisable to do so, (i) to restrict the purpose prospective bidders on or purchasers of bidding and making settlement or payment any of the purchase price Subsidiary Shares to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Subsidiary Shares, (ii) to cause to be placed on certificates for any or all of the Subsidiary Shares or any portion other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the Collateral sold at provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such public sale, sale as the Trustee deems necessary or advisable in order to use comply with said Act or any other law. The Company covenants and apply all of agrees that it will execute and deliver such documents and take such other action as the Trustees deems necessary or advisable in order that any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with applicable law. Upon any such sale of Collateral by the Secured Party (including pursuant Trustee shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold sold. In order to ratify and confirm any such purchaser or purchasers shall not be obligated to see to sale the application of any part Company will, upon the request of the purchase money paid to the Secured Party Trustee or any such officer purchaser, execute and deliver thereto all instruments of assignment, conveyance or transfer and release as may be answerable designated in any way for the misapplication thereofsuch request. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorCompany which may be waived, and each Pledgor hereby waives (the Company, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party receipt given by the Trustee or by the officer making such sale under judicial proceedings shall be a sufficient discharge to any purchaser for its purchase money, and, after paying such purchase money and receiving such receipt, such purchaser or its personal representatives or assigns shall not be obliged to see the application of such purchase money, or be in any way answerable for any loss, misapplication or the non-application thereof.
(B) To the extent the Trustee is obligated by law to provide notice, the notice (if any) shall (i) in case of a public sale, state the time and place fixed for such sale, (ii) in the case of a sale at any broker's board or on a securities exchange, state the board or exchange at which sale is to be made and the day on which the Collateral, or the portion thereof being so sold, will first be offered for sale at such board or exchange and (iii) in the case of a private sale, state the day after which such sale may be consummated. In the event any such notice is required to be given, the Trustee shall give the Company not less than ten days' prior written notice of the time and place of any sale or other intended disposition of any of its Collateral. The Company agrees that such notice constitutes "reasonable notification" within the meaning of Section 9-504(3) of the UCC. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Trustee may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Trustee may determine. The Trustee shall not be obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Trustee until the selling price is paid by the purchaser thereof, but the Trustee shall not incur any liability in case of the failure of such purchaser to take up and pay for the collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Trustee, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(C) For the bidders purpose of exercising any and prospective purchasers to those who will represent all rights and agree that they are purchasing for investment only and not for distribution. In doing soremedies under this Agreement, the Secured Party Trustee may solicit offers to buy (i) require the Collateral Company to, and the Company agrees that it will, at its expense and upon the request of the Trustee, forthwith assemble all or any part thereof for cash, from a limited number of investors reasonably believed the Collateral as directed by the Secured Party Trustee and make it available at a place designated by the Trustee which is in its opinion, reasonably convenient to the Trustee and the Company whether at the premises of the Company or otherwise; (ii) to the extent permitted by applicable law, enter, with or without process of law and without breach of the peace, any premise where any of the Collateral is or may be institutional investors located, and without charge or other accredited investors who might be interested in purchasing liability to it seize and remove such Collateral from such premises; and (iii) have access to and use of the Company's books and records relating to the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one .
(D) The Trustee may exercise any and all rights and remedies of the offers shall be deemed Company under or in connection with any obligation owing to be a commercially reasonable method the Company in respect of disposing the Collateral, including, without limitation, any and all rights of the Company to demand or otherwise require payment of any amount under any obligation owing to the Company in respect of the Collateral.
(gE) If In addition to and without limiting the Secured Party shall determine to exercise its right to sell foregoing, the Trustee may utilize all or any portion of the Collateral pursuant following powers with respect to this Section, each Pledgor agrees that, upon request all or any of the Secured Party, such Pledgor willCollateral, at its own expenseany time and from time to time while an Event of Default has occurred and is continuing:
(i) use its best efforts to execute demand, ▇▇▇ for, collect, receive and deliver, give acquittance for any and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so monies due or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required due thereon or by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable theretovirtue thereof;
(ii) use its best efforts to execute and deliversettle, and cause the Subject Issuers and the directors and officers thereof to execute and delivercompromise, all such instruments and documentscompound, and to do so prosecute or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws defend any action or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Partyproceeding with respect thereto;
(iii) cause if the Subject Issuers to make available to their respective security holdersNotes have been declared, or have become, due and payable and such declaration and its consequences have not been rescinded and annulled, sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as soon fully and effectually as practicable, an earnings statement which will satisfy if the provisions of Section 11(a) of Trustee were the Securities Actabsolute owner thereof; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in extend the Secured Party s opinion, desirable to facilitate such sale time of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling payment of any of the Collateralor all thereof and make any allowance and other adjustments with reference thereto.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party may Lender may, without further notice, exercise (all rights and remedies under this Agreement or cause its agents to exercise) any other Loan Document or all of the remedies that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in the jurisdiction where such rights are exercised) any order and (ii) in any combination, including to collect any and all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral Secured Obligations from Grantors, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Lender may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Lender may deem commercially reasonable, irrespective satisfactory. The Lender shall give the Borrower not less than ten (10) days’ prior written notice of the impact time and place of any sale or other intended disposition of Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Grantors agree that any such sales on notice constitutes "reasonable notification" within the market price meaning of Section 9-611 of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary such Section or any successor provision under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not applyUCC is applicable). To the maximum extent permitted by applicable law, the Secured Party .
(b) The Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Grantors agree during an Event of Default to execute and deliver such documents and take such other action as the Lender reasonably deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Lender shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of any Pledgorkind, and each Pledgor hereby waives (to including any equity or right of redemption of Grantors. To the extent permitted by applicable law) , Grantors hereby specifically waive all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Lender may fix in the notice of such sale. At any such sale Collateral may be sold in one (1) lot as an entirety or in separate parcels, as the Lender may determine. The Lender shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may Lender may, without notice or publication (other than any notices required by this Section 8 or by applicable law), 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum Collateral on credit or for future delivery, such Collateral so sold may be retained by the Lender until the selling price is paid by the purchaser thereof, but the Lender shall not incur any liability in case of the failure of such purchaser to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Grantors shall remain liable for any deficiency.
(c) For the purpose of enforcing any and all rights and remedies under this Agreement, the Lender may (i) require Grantors to, and Grantors agree that it will, at the joint and several expense of Grantors, and upon the request of the Lender, forthwith assemble all or any part of its Collateral as directed by the Lender and make it available at a place designated by the Lender which is, in the Lender’s opinion, reasonably convenient to the Lender and Grantors, whether at the premises of Grantors or otherwise, (ii) to the extent permitted by applicable law, each Pledgor hereby waives enter, with or without process of law and without breach of the peace, any claim against the Secured Party arising because the price at which premise where any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral is or may be located and, without charge or liability to more than one offeree. The Secured Party may disclaim the Lender, seize and remove such Collateral from such premises, (iii) have access to and use each Grantor’s books and records, computers and software (subject to the terms of applicable licenses) relating to the Collateral, and (iv) prior to the disposition of any warrantyof the Collateral, as store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by any Grantor, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to title or as to any other matterthe extent the Lender deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale use without charge any trademark, trade name, copyright, patent or other disposition.
(c) If the Secured Party sells technical process used by any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth hereinGrantor.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders Default has occurred and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expenseis continuing:
(i) use its best efforts the Lender may (without assuming any obligations or liability thereunder), at any time and from time to execute time, enforce (and delivershall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of Grantors in, to and under any Licenses and take or refrain from taking any action under any thereof, and cause Grantors hereby release the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documentsLender from, and agrees to do hold the Lender free and harmless from and against any claims arising out of, any lawful action so taken or cause omitted to be done all such other acts taken with respect thereto except for the Lender’s gross negligence or willful misconduct as determined by a final and things, as may be necessary or, in the opinion nonappealable decision of the Secured Party, desirable to register such Collateral under the provisions a court of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;competent jurisdiction; and
(ii) use its best efforts upon request by the Lender, Grantor agrees to execute and deliver, and cause deliver to the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orLender powers of attorney, in form and substance satisfactory to the opinion Lender, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property, in each case subject to the terms of the Secured Partyapplicable License. In the event of any such disposition pursuant to this Section 8, desirable Grantors shall supply their know-how and expertise relating to qualify the Collateral under state securities laws or Blue Sky laws manufacture and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by products bearing Trademarks or the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do products or cause to be done all such other acts and things as may be necessary or, services made or rendered in the Secured Party s opinion, desirable to facilitate such sale of the Collateral connection with Patents or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damagesCopyrights, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges customer lists and agrees that in exercising any rights under or with respect other records relating to such Intellectual Property and to the Collateraldistribution of said products, to the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralLender.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, Kreos may take any of the Secured Party following actions:
(a) Kreos may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Kreos may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sellincluding provisions that require a secured party to act in a commercially reasonable manner, (i) apply the cash, if any, then held by it as Collateral hereunder, for the purposes and in the manner specified in Section 18, and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Collateral Obligations in full, sell the Collateral, or any part thereof in or component thereof, at one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, sales for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Kreos may reasonably deem commercially reasonable, irrespective satisfactory.
(b) Kreos may require Guarantor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party Collateral and make it available to sell or otherwise dispose Kreos at a place to be designated by Kreos which is reasonably convenient. Any holder of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Obligation may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any such public sale (and, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same absolutely, to use and apply all free from any right or claim of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salewhatsoever kind. Upon any sale of Collateral by such sale, Kreos shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of Guarantor.
(c) Unless the Collateral to be sold is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Kreos shall give Guarantor at least ten (10) business days’ prior written notice of its intention to make any such public or private sale. Guarantor agrees that such notice constitutes “reasonable notification” within the part meaning of any Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it now has or may at any time UCC. Such notice in the future have under case of a public sale shall state the time and place fixed for such sale. Such notice in the case of a private sale or disposition shall state the time after which any rule private sale or other intended disposition is to be made.
(d) Any such public sale shall be held at such time or times within ordinary business hours and at public or private place or places as Kreos may fix in the notice of law such sale. At any public or statute now existing private sale, the Collateral may be sold in one lot as an entirety or hereafter enactedin separate parcels, as Kreos may reasonably determine. The Secured Party Kreos shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of such notice. Kreos may, without notice of sale having been given. The Secured Party may 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 placed fixed thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Kreos until the selling price is paid by the purchaser thereof, but Kreos shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice.
(e) Kreos, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(f) To enforce the bidders and prospective purchasers provisions of this Agreement, ▇▇▇▇▇ is empowered to those who will represent and agree that they are purchasing for investment only and not for distributionrequest the appointment of a receiver from any court of competent jurisdiction. In doing so, The receiver shall have the Secured Party may solicit offers power to buy dispose of the Collateral in any manner lawful in the jurisdiction in which his appointment is confirmed, including the power to conduct a public or any part thereof for cash, from a limited number private sale of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit Kreos may bid at any such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralpublic or private sale.
(g) GUARANTOR ACKNOWLEDGES THAT THE APPOINTMENT OF A RECEIVER IS INTEGRAL TO ▇▇▇▇▇’S REALIZATION OF THE VALUE OF THE COLLATERAL, THAT THERE IS NO ADEQUATE REMEDY AT LAW FOR FAILURE BY GUARANTOR TO COMPLY WITH THE PROVISIONS OF THIS SECTION AND THAT SUCH FAILURE WOULD NOT BE ADEQUATELY COMPENSABLE IN DAMAGES, AND THEREFORE AGREES THAT THE AGREEMENTS CONTAINED IN THIS SECTION MAY BE SPECIFICALLY ENFORCED.
(h) All rights and remedies contained herein shall be separate and cumulative and in addition to all other rights and remedies available to a secured party under applicable law, and the exercise of one shall not in any way limit or prejudice the exercise of any other such rights or remedies.
(i) If the Secured Party at any time when Kreos shall determine to exercise its right to sell all or any portion part of the Collateral Pledged Investment Property pursuant to subsection (a)(ii) of this SectionSection 16, each Pledgor agrees that, upon request Guarantor recognizes that Kreos may be unable to effect a public sale of the Secured PartyPledged Investment Property by the reason of certain prohibitions contained in the Securities Act, or other applicable state or federal laws, and Kreos may therefore resort to one or more private arm’s-length sales thereof to a restricted group of purchasers. Guarantor agrees that any such Pledgor willprivate sales may be at prices and on other terms less favorable to the seller than if sold at public sales and that such private arm’s-length sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. Kreos shall sell all or any part of the Pledged Investment Property at a price which it deems commercially reasonable under the circumstances. Kreos shall be under no obligation to delay a sale of any of the Pledged Investment Property for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act, at its own expense:
(i) or such other applicable laws, even if the issuer would agree to do so. Subject to the foregoing, ▇▇▇▇▇ agrees that any sale of the Pledged Investment Property shall be made in a commercially reasonable manner, and Guarantor agrees to use its best commercially reasonable efforts to cause the issuer or issuers of the Pledged Investment Property contemplated to be sold, to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliverall at Guarantor’s expense, all such instruments and documents, and to do so or cause to be done all such other acts and things, things as may be necessary or, in advisable to exempt the opinion of the Secured Party, desirable to register such Collateral Pledged Investment Property from registration under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments to such instruments and supplements thereto and to the related prospectuses documents which, in the opinion of the Secured PartyKreos, are necessary or desirableadvisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;, and other applicable law.
(iij) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion The receipt by Kreos of the Secured Party, desirable purchase money paid at any such sale made by it shall be a sufficient discharge therefor to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale any purchaser (other than Kreos) of the Collateral, or any portion thereof, sold as requested by aforesaid; and no such purchaser (or his or its representatives or assigns) (other than Kreos), after paying such purchase money and receiving such receipt, shall be bound to see to the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions application of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral purchase money or any part thereof or in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law any manner whatsoever be answerable for failure by it any loss, misapplication or nonapplication of any such purchase money, or any part thereof, or be bound to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect inquire as to the Collateralauthorization, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so electsnecessity, and each Pledgor waives any right to require the marshaling expediency or regularity of any of the Collateralsuch sale.
Appears in 1 contract
Sources: Loan Agreement
Remedies Upon Event of Default. (a) If an any Event of Default under the Indenture or a material default hereunder (any such Event of Default or default being referred to in this Pledge Agreement as an "Event of Default") shall have occurred and be continuing:
(a) The Trustee and the Holders of the Senior Notes and the Discount Notes shall have, on an equal and ratable basis, in addition to all other rights given by law or by this Pledge Agreement or the Secured Party may exercise (or cause its agents to exercise) any or Indenture, all of the rights and remedies available with respect to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights Collateral of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) UCC. In addition, with respect to any Collateral that shall then be in or shall thereafter come into the possession or custody of the Trustee, the Trustee may and, in addition, at the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose direction of the Collateral Holders of a majority in principal amount of the Senior Notes and of the Discount Notes then outstanding shall, appoint a broker or other expert to sell or cause the same to be sold at any part thereof in one broker's board or more parcels at public or private sale, in one or more sales or lots, at any exchange, such price or prices such broker s board or at any of the Secured Party s offices or elsewhereother expert may deem best, for cash, cash or on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact without assumption of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)credit risk. To the maximum extent permitted by applicable law, the Secured Party may be the The purchaser of any or all of the Collateral at any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall thereafter hold the property sold absolutely same absolutely, free from any claim claim, encumbrance or right on the part of any kind whatsoever created by or through the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all rights of redemption, stay or appraisal that it 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 Party shall not be obliged to make any sale of Collateral regardless of Trustee will give the Pledgor reasonable notice of sale having been given. The Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed thereforof any public sale thereof, and such sale may, without further notice, be made at or of the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at after which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not intended disposition is to be considered adversely to affect the commercial reasonableness of such made. Any sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon creditconducted in conformity with reasonable commercial practices of banks, the Pledgors will be credited only with payment actually made by the purchaserinsurance companies, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject commercial finance companies or other financial institutions disposing of property similar to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be commercially reasonable. Any requirements of reasonable notice shall be met if such notice is mailed to the Pledgor as provided in Section 15.1 hereof at least ten (10) days before the time of the sale or disposition. The Trustee or any Holder of Senior Notes or Discount Notes may, in its own name or in the name of a commercially designee or nominee, buy any of the Collateral at any public sale and, if permitted by applicable law, at any private sale. All expenses (including court costs and reasonable method attorneys' fees, expenses and disbursements) of, or incident to, the enforcement of disposing any of the provisions hereof shall be recoverable from the proceeds of the sale or other disposition of the Collateral.
(gb) If the Secured Party shall determine The Pledgor further agrees to exercise use its right reasonable best efforts to sell do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute Section 12 valid and deliver, binding and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with any and all other applicable requirements of law. Each The Pledgor acknowledges further agrees that there is a breach of any of the covenants contained in this Section 12 will cause irreparable injury to the Trustee and the Holders of the Senior Notes and the Discount Notes, that the Trustee and the Holders of the Senior Notes and the Discount Notes have no adequate remedy at law for failure by it to comply with the provisions in respect of this Section such breach and, as a consequence, that each and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements every covenant contained in this Section may 12 shall be specifically enforced. Each of enforceable against the Pledgors acknowledges Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling Event of any of the CollateralDefault has occurred.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Rhythms Net Connections Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuingoccurred, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where such rights and remedies are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral in the manner specified in SECTION 15 hereof, and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Collateral Obligations in full, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective satisfactory.
(b) Secured Party may require Debtor to assemble all or any part of the impact of any such sales on the market price of the Collateral; provided that the right of the Collateral and make it available to Secured Party at a place to sell or otherwise dispose be designated by Secured Party which is reasonably convenient. Any holder of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Obligation may be the purchaser of any or all of the Collateral so sold at any public sale (and, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same absolutely, free from any right or claim of whatsoever kind. Upon any such sale 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 at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of Debtor.
(c) Unless the Collateral to be sold is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Secured Party shall give Debtor at least twenty (20) days' prior written notice of its intention to make any such public or private sale or sale at a broker's board or on a securities exchange. Such notice, in case of a public sale, shall state the part of any Pledgortime and place fixed for such sale, and each Pledgor hereby waives in case of sale at a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange. Such notice, in case of a private sale or disposition, shall state the time after which any private sale or other intended disposition is to be made.
(to the extent permitted by lawd) all rights of redemption, stay Any such public sale shall be held at such time or appraisal that it now has times within ordinary business hours and at public or private place or places as Secured Party may at any time fix in the future have under notice of such sale. At any rule of law public or statute now existing private sale, the Collateral may be sold in one lot as an entirety or hereafter enactedin separate parcels, as Secured Party may determine. The Secured Party shall not be obliged obligated to make such sale pursuant to any sale of Collateral regardless of notice of sale having been givensuch notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was so the same may be adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice.
(e) Debtor acknowledges that Secured Party may be unable to effect a private placementpublic sale of Pledged Securities by reason of prohibitions contained in applicable state and federal securities laws, restricting and agrees that Secured Party is authorized, at any such sale, if it deems it advisable so to do, to restrict the prospective bidders and prospective or purchasers of any of the Pledged Securities to those persons who will represent and agree that they are purchasing for their own account for investment only and not for distributionwith a view to the distribution or sale of any of such Pledged Securities. In doing soDebtor agrees that any private sale of Pledged Securities may be at prices and on terms less favorable than if sold at public sales, the Secured Party may solicit offers and Debtor agrees that such private sales shall not by reason thereof be deemed to buy the Collateral or any part thereof for cash, from have been made in a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateralcommercially unreasonable manner. If the Secured Party shall solicit have no obligation to delay any sale of Pledged Securities for the period of time necessary to permit the issuer of such offersPledged Securities to register such securities for public sale under applicable securities laws, then even if such issuer would agree to do so.
(f) Secured Party, instead of exercising the acceptance power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(g) If Secured Party, and any officer or agent of Secured Party is hereby constituted and appointed as true and lawful attorney-in-fact of Debtor with power: (i) to license, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, subject to any existing licenses, any of the patents, applications for patents, trademarks, trade names, service marks, registrations of trademarks and service marks, copyrights, other proprietary information and designs, for such term or terms, on such conditions, and in such manner, as Secured Party shall determine to exercise in its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
sole discretion determine; (ii) use its best efforts to execute enforce (and deliver, and cause shall have the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any exclusive right to require the marshaling enforce) against any licensee or sublicensee all rights and remedies of Debtor in, to and under any one or more licenses of any of the Collateral.patents, applications for patents, trademarks, trade names, service marks, registrations of trademarks and service marks, copyrights, other proprietary information and designs, and take or refrain from taking any action under any thereof, and Debtor hereby releases Secured Party from, and agrees to hold Secured Party free and harmless from and against any claims arising out of, any action taken or omitted to be taken with respect to any such licenses except for Secured Party's own gross negligence or willful misconduct;
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred occurred, and be is continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights and remedies of a secured party under the UCC (whether Uniform Commercial Code and any and all other remedies and rights at law or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral equity and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral in the manner specified in Section 9, and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Collateral Obligations in full, sell the Collateral, or any part thereof in one or more parcels thereof, at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices or elsewherebroker's board, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective satisfactory. Secured Party shall have the right to take immediate possession of the impact of Collateral and for the purpose may, so far as Debtor may give authority therefor, enter upon any premises on which any Collateral is located without notice and remove the same therefrom. Debtor hereby expressly consents to such sales on the market price repossession of the Collateral; provided that the right Collateral and waives all rights to demand any notice with respect thereto. Secured Party may require Debtor to assemble all or any part of the Collateral and make it available to Secured Party at a place to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the designated by Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)which is reasonably convenient. To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any such public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale), and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for may apply all or any portion of the Collateral sold at any such public sale, to use and apply all of any part of Obligations towards the Secured Obligations as a credit on account of the purchase price of payment for any Collateral payable at such salepurchased by Secured Party, and may thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Upon any such sale of Collateral by the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely absolutely, free from any claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption. Debtor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party shall give ten (10) days' prior written notice of its intention to make any such public or private sale. Such notice, in case of a public sale, shall state the time and place fixed for such sale. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing on credit or for investment only and not for distribution. In doing sofuture delivery, the Collateral so sold may be retained by Secured Party may solicit offers to buy until the Collateral or any part thereof for cash, from a limited number of investors reasonably believed selling price is paid by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the purchaser thereof, but Secured Party shall solicit such offers, then the acceptance by the Secured Party of one not incur any liability in case of the offers shall failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be deemed sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to be a commercially reasonable method of disposing of foreclose the Security Interests and sell the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all , or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Solely, for purposes of exercising the Collateral pursuant rights and powers granted to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges 8 or by applicable law, and agrees that until all Obligations are satisfied in exercising any rights under or with respect to the Collateralfull, the Debtor hereby grants to Secured Party is under no obligation an irrevocable license to marshal use all trademarks and trade names (and to sell goods bearing any Collateral and may such trademark or trade name), registered or unregistered, which are now or hereafter owned by or licensed to Debtor or in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralwhich Debtor now has or hereafter acquires an interest.
Appears in 1 contract
Sources: Security Agreement (Paperclip Imaging Software Inc/De)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Company may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Company may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of applicable law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Company may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Company may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Company is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (ii) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Company deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Company deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Company shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any Pledgor which may be waived, and the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall not be obliged to make any sale (1) in case of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale may, without further notice, is to be made at and the time and place to day on which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, or the Secured Party may resell portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the samecase of a private sale, subject to state the same rights and duties set forth herein.
(d) Notice of any day after which such sale or other disposition may be consummated. Any such public sale shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement held at such time or times within ordinary business hours and at such place or places as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to Company may fix in the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 notice of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that sale. At any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.such
Appears in 1 contract
Sources: Pledge Agreement (Lendingtree Inc)
Remedies Upon Event of Default. (a) 6.1. If an any Event of Default shall have has occurred and be is continuing, the Secured Party may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the other rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker’s board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the The Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. Debtor agrees to execute and deliver such documents and take such other action as the Secured Party deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by such sale, the Secured Party (including pursuant shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely to it absolutely, free from any claim or right on the part of whatsoever kind, including any Pledgorequity or right of redemption of Debtor which may be waived and Debtor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The notice of sale shall, (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Secured Party may determine. The Secured Party shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Secured Party until the selling price is paid by the purchaser thereof, but the Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Secured Party, instead of exercising the power of sale herein conferred upon them, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
6.2. For the bidders purpose of enforcing any and prospective purchasers to those who will represent all rights and agree that they are purchasing for investment only remedies under this Agreement, if any Event of Default has occurred and not for distribution. In doing sois continuing, then the Secured Party may solicit offers to buy the Collateral (a) require Debtor to, and Debtor agrees that it will, at its own expense, forthwith assemble all or any part thereof for cash, from a limited number of investors reasonably believed the Collateral as directed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance and make it available at a place designated by the Secured Party which is, in its opinion, reasonably convenient to the Secured Party and Debtor, whether at the premises of one Debtor or otherwise, (b) to the extent permitted by applicable law, enter, with or without process of law and without breach of the offers shall peace, any premise where any of the Collateral is or may be deemed located, and without charge or liability to be a commercially reasonable method it seize and remove such Collateral from such premises, (c) have access to and use any of disposing Debtor’s books and records relating to the Collateral and (d) prior to the disposition of the Collateral.
(g) If , process, repair or recondition it or otherwise prepare it for disposition in any manner and to the extent the Secured Party shall determine to exercise its right deems appropriate and, in connection with such preparation and disposition, use without charge any trademark, trade name, copyright, patent or technical process used by Debtor.
6.3. Any laboratory which has possession of any of the Collateral is hereby constituted and appointed by Debtor as pledgeholder for the Secured Party and the Secured Party may authorize each such pledgeholder to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request the order and direction of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, Debtor hereby waives any and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective claims for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising or otherwise, for any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralaction taken by such pledgeholder.
Appears in 1 contract
Remedies Upon Event of Default. (aA) If an any Event of Default shall have occurred and be continuing, the Secured Party may exercise (or cause its agents to exercise) any or all Administrative Agent may, at the direction of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality Required Lenders, exercise on behalf of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect ), subject to any Collateral applicable laws, rules and regulations and orders relating to national security, and, in addition, the Secured Party Administrative Agent may, at the direction of the Required Lenders, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral (subject to any applicable laws, rules, regulations, and orders relating to national security) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Administrative Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral (subject to any applicable laws, rules, regulations, and orders relating to national security) so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (ii) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Pledgor will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent reasonably deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold (subject to any applicable laws, rules, regulations, and such purchaser or purchasers shall not be obligated orders relating to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofnational security). Each purchaser at any such sale shall (subject to any applicable laws, rules, regulations, and orders relating to national security) hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorPledgors which may be waived, and each Pledgor hereby waives (Pledgor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. The Administrative Agent, instead of exercising the power of sale herein conferred upon it (subject to any applicable laws, rules, regulations and orders relating to national security), may, at the direction of the Required Lenders, proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gB) If The Administrative Agent will take the actions and exercise the rights and remedies on behalf of the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral Parties pursuant to this Section, each Pledgor agrees that, upon Section 10 at the request of the Secured PartyRequired Lenders and subject to any applicable laws, such Pledgor willrules, at its own expense:
regulations and orders (iincluding, without limitation, any applicable laws, rules, regulations and orders relating to national security) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling sale or transfer of any of the Collateral. Anything in this Agreement to the contrary notwithstanding, in the event that the Administrative Agent, acting as authorized pursuant to this Agreement or any of the Loan Documents, seeks to exercise any remedies upon the occurrence of an Event of Default that will require it to have access to classified information or information which otherwise cannot be held by the Administrative Agent under applicable laws, rules, regulations or orders relating to national security ("Classified Information"), and the Administrative Agent is unable to obtain a clearance or other governmental approval required to have such access within a reasonable time after seeking to exercise its remedies upon the occurrence of an Event of Default, each Pledgor shall dispose of all Classified Information that is Collateral in compliance with the applicable laws, rules regulations and orders and as the Administrative Agent may direct, with the proceeds of such disposition to constitute Collateral hereunder and to be payable directly, to the extent permitted under such applicable laws, rules, regulations and orders, to the Administrative Agent for the benefit of the Secured Parties.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sellapply cash, if any, then held by it as Collateral as specified in Section 12 and, if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, to restrict the prospective bidders on or purchasers of any of the securities included in the Collateral to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such securities, to cause to be placed on any security included in the Collateral a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provisions of said Act, and to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Lien Grantor agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorLien Grantor which may be waived, and each Pledgor hereby waives (Lien Grantor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. Notice of any such sale shall be given to the relevant Lien Grantor(s) as required by Section 9 and shall in case of a public sale, state the time and place fixed for such sale, in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and in case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Secured Party Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In the maximum extent permitted case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by lawthe Administrative Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Administrative Agent shall not incur any claim against liability in the Secured Party arising because case of the price at which failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Administrative Agent, instead of exercising the power of sale herein conferred upon it, may disclaim proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to any other matter, in connection with such sale decree of a court or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness courts of such sale or other dispositioncompetent jurisdiction.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Administrative Agent may (i) require each Lien Grantor to, and each Lien Grantor agrees that it will, at such time its expense and upon the request of the Administrative Agent, forthwith assemble all or any part of its Collateral as directed by the Secured Party shall be lawfully entitled to exercise such rights Administrative Agent and remediesmake it available at a place designated by the Administrative Agent which is, each Pledgor hereby grants in its opinion, reasonably convenient to the Secured Party an irrevocable license Administrative Agent and such Lien Grantor, whether at the premises of such Lien Grantor or otherwise, (exercisable ii) to the extent permitted by applicable law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premises where any of the Collateral consisting is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use such Lien Grantor's books and records relating to its Collateral and (iv) prior to the disposition of Intellectual Property now its Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such PledgorLien Grantor, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software the extent the Administrative Agent deems appropriate and, in connection with such preparation and programs disposition, use without charge any trademark, trade name, copyright, patent or technical process used for the compilation or printout thereofby such Lien Grantor. The use Administrative Agent may also render any or all of such license by the Secured Party Collateral unusable at such Lien Grantor's premises and may be exercised only upon the occurrence and during the continuation dispose of an Event of Default; provided that any license, sublicense such Collateral on such premises without liability for rent or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcosts.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of if an Event of DefaultDefault shall have occurred and be continuing,
(i) the Administrative Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Secured Party mayCollateral throughout the world for such term or terms, subject on such conditions and in such manner as the Administrative Agent shall in its sole discretion determine; provided that such licenses do not conflict with any existing license a copy of which has been delivered to applicable lawthe Administrative Agent;
(ii) the Administrative Agent may (without assuming any obligations or liability thereunder), at any time and from time to time attempt time, in its sole and reasonable discretion, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all rights and remedies of any Lien Grantor in, to and under any of its Intellectual Property and take or refrain from taking any action under any thereof, and each Lien Grantor hereby releases the Administrative Agent and each of the other Secured Parties from, and agrees to hold the Administrative Agent and each of the other Secured Parties free and harmless from and against any claims and expenses arising out of, any lawful action so taken or omitted to be taken with respect thereto, except for claims and expenses arising from the Administrative Agent's or such Secured Party's gross negligence or willful misconduct; and
(iii) upon request by the Administrative Agent (which shall not be construed as implying any limitation on the rights or powers of the Administrative Agent), each Lien Grantor will execute and deliver to the Administrative Agent a power of attorney, in form and substance satisfactory to the Administrative Agent, for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property owned by such Lien Grantor or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distributionaction related thereto. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request of the Secured Partysubject to confidentiality restrictions imposed on such Lien Grantor in any license or similar agreement, such Pledgor will, at Lien Grantor shall supply its own expense:
(i) use its best efforts know-how and expertise relating to execute and deliveror the products or services made or rendered in connection with Patents, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Intellectual Property and to the related prospectuses whichdistribution of said products or services, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAdministrative Agent.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all at the direction of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality Required Banks, exercise on behalf of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or or, if the Uniform Commercial Code is not in effect in the jurisdiction where such rights are exercised) and (ii) all , the powers given UCC as in effect in the State of New York to the extent not prohibited by section 30 the laws of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral such jurisdiction), and, in addition, the Secured Party Collateral Agent may, at the direction of the Required Banks, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell, or otherwise dispose of (i) withdraw all cash and Liquid Investments in the Collateral Account and the Insurance Account and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 10 and (ii) if there shall be no such cash or Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all the Secured Obligations in full, sell the Collateral (subject to any applicable laws, rules, regulations and orders) or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may reasonably deem commercially reasonable, irrespective of the impact of satisfactory. The Collateral Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral (subject to any applicable laws, rules, regulations and orders) so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Debtor will execute and deliver such documents and take such other action as the Collateral Agent reasonably deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold (subject to any applicable laws, rules, regulations and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereoforders). Each purchaser at any such sale shall (subject to any applicable laws, rules, regulations and orders) hold the property Collateral so sold to it absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorDebtor which may be waived, and each Pledgor hereby waives (Debtor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 7 shall (1) in the case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 therefor, and such sale may, without further notice, be made at for the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of itself, the Administrative Agent and the Lenders, upon the request of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingRequired Lenders, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, upon the request of the Required Lenders, without being required to give any noticenotice to any Assignor, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 5.04 and (ii) if there shall be no such cash or otherwise dispose of Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all the Obligations in full or cannot be so applied for any reason, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable lawsatisfactory. The Collateral Agent, the prior approval of such sale Administrative Agent or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party any Lender may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale) and thereafter hold the same absolutely, free from any right or claim of whatsoever kind. The Assignors will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of Collateral Agent shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof(without warranty). Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorAssignors which may be waived, and each Pledgor hereby waives (the Assignors, to the extent permitted by law) , hereby specifically waive all rights of redemption, stay or appraisal that it now has which they have or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 5.01 shall (i) in the case of a public sale, state the time and place fixed for such sale, and (ii) in the case of a private sale, state the day after which such sale may be consummated. Any such 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be made at retained by the time Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and place to which it was pay for the Collateral so adjourned. To sold and, in the maximum extent permitted by lawcase of any such failure, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Collateral Agent, instead of exercising the power of sale herein conferred upon it, may disclaim proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to decree of a court or courts of competent jurisdiction. The Assignors shall remain jointly and severally liable for any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other dispositiondeficiency.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eb) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Collateral Agent may (i) require the Assignors to, and each Assignor agrees that it will, at its expense and upon the request of the Collateral Agent, forthwith assemble all or any part of the Collateral as directed by the Collateral Agent and make it available at a place designated by the Collateral Agent which is, in the Collateral Agent's opinion, reasonably convenient to the Collateral Agent and such time as Assignor, whether at the Secured Party premises of such Assignor or otherwise, it being understood that such Assignor's obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be lawfully entitled to exercise a decree requiring specific performance by such rights and remedies, each Pledgor hereby grants Assignor of such obligations; (ii) to the Secured Party an irrevocable license (exercisable extent permitted by Applicable Law, enter, with or without payment process of royalty or other compensation to such Pledgor)law and without breach of the peace, to use, license or sublicense any premise where any of the Collateral consisting is or may be located, and without charge or liability to the Collateral Agent seize and remove such Collateral from such premises; (iii) have access to and use the Assignors' books and records relating to the Collateral; and (iv) prior to the disposition of Intellectual Property now the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by the Assignors, process, repair or recondition it or otherwise prepare it for disposition in any manner and to the extent the Collateral Agent deems appropriate and, in connection with such Pledgorpreparation and disposition, and including in such license access to use without charge any Patent, Trademark, copyright, License relating thereto or technical process used by the Assignors. The Collateral Agent may also render any or all media in which any of the licensed items Collateral unusable at any Assignor's premises and may be recorded or stored and to all computer software and programs used for the compilation or printout thereof. The use dispose of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense Collateral on such premises without liability for rent or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultcosts.
(fc) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, Default has occurred and is continuing (but subject to applicable law, from time to time attempt to sell all or the terms of any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:prior License permitted hereby):
(i) the Collateral Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Patents, Trademarks or copyrights included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its sole discretion determine;
(ii) the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time, enforce (and shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the Assignor in, to and under any License with respect to any Patent or Trademark, or license with respect to copyrights and take or refrain from taking any action under any provision thereof, and the Assignor hereby releases the Collateral Agent from, and agrees to hold the Collateral Agent free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto; and
(iii) upon request by the Collateral Agent, each Assignor will use its best efforts to obtain all requisite consents or approvals by the licensor or sublicensor of each License with respect to Patents, license with respect to copyrights or License with respect to Trademarks to effect the assignment of all of the Assignor's rights, title and interest thereunder to the Collateral Agent or its designee and will execute and deliver, and cause deliver to the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orCollateral Agent a power of attorney, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, form and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and substance satisfactory to the related prospectuses whichCollateral Agent, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of the Collaterala Patent, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities ActTrademark or copyright; and
(iv) do the Collateral Agent may direct any Assignor to refrain, in which event such Assignor shall refrain, from using or cause practicing any Trademark, Patent or copyright in any manner whatsoever, directly or indirectly and shall, if requested by the Collateral Agent change such Assignor's name to be done all eliminate therefrom any use of any Trademark and will execute such other acts and things further documents as the Collateral Agent may be necessary orrequest to further confirm this and transfer ownership of the Trademarks, in Patents, copyrights and registrations and any pending applications therefor to the Secured Party s opinionCollateral Agent.
(d) In the event of any disposition of any Patent, desirable Trademark or copyright pursuant to facilitate such this Article V, the Assignors shall supply their know-how and expertise relating to the manufacture and sale of the Collateral products or any part thereof services bearing Trademarks or the products, services or works made or rendered in compliance connection with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damagesor under Patents, Trademarks or copyrights, and therefore agrees that their customer lists and other records relating to such Patents, Trademarks or copyrights and to the distribution of said products, services or works, to the Collateral Agent.
(e) If any Event of Default has occurred and is continuing, each Assignor shall use its agreements contained in this Section may be specifically enforced. Each best efforts upon the reasonable request of the Pledgors acknowledges Collateral Agent to obtain from the appropriate governmental authorities the necessary consents and agrees that in exercising approvals, if any, for the assignment or transfer of any rights under or with respect governmental authorizations, governmental licenses and governmental permits to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in Agent or its absolute discretion realize designee upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any acceleration of the CollateralObligations.
Appears in 1 contract
Sources: Security Agreement (GTS Duratek Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Banks all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Account and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 14 and (ii) if there shall be no such cash or otherwise dispose of Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party Any Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (i) to restrict the prospective bidders on or purchasers of any of the Pledged Stock to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Stock, (ii) to cause to be placed on certificates for any or all of the Pledged Stock or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provisions of said Act, and (iii) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Agent deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Obligor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral sold at Agent deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorObligor which may be waived, and each Pledgor hereby waives (Obligor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 10 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Administrative Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party after default under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Administrative Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash, if any, then held by it as Collateral and apply it as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Administrative Agent may reasonably deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Administrative Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (a) to restrict the prospective bidders on or purchasers of any of the Pledged Equity Interests to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Equity Interests, (b) to cause to be placed on certificates for any or all of the Pledged Equity Interests or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933, as amended, and may not be disposed of in violation of the provision of said Act, and (c) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Administrative Agent reasonably deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. Each Obligor will execute and deliver such documents and take such other action as the Collateral sold at Administrative Agent reasonably deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Administrative Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorObligor which may be waived, and each Pledgor hereby waives (Obligor, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice of such sale required by Section 9 shall (1) in the case of a public sale, state the time and place fixed for such sale, (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may determine. The Administrative Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice Administrative Agent giving the notice required to be given pursuant to Section 9. In the case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the selling price is paid by the purchaser thereof, but the Administrative Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice. 176 The Administrative Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting suit or suits at law or in equity to foreclose the bidders Security Interests and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Venator Group Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the Secured Parties without further notice, all rights and remedies under this Agreement, the SunTrust Note or any other Credit Document or that are available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party creditor under the UCC (whether or not that are otherwise available at law or in effect equity, at any time, in the jurisdiction where such rights are exercised) any order and (ii) in any combination, including to collect any and all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to Secured Obligations from any Collateral Grantor, and, in addition, the Secured Party may, without being required to give any notice, except as herein provided or as Collateral Agent may be required by mandatory provisions of law, sell, or otherwise dispose of sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective satisfactory. The Collateral Agent shall give each Grantor not less than ten (10) days' prior written notice of the impact time and place of any sale or other intended disposition of such sales Grantor's Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. The Grantors agree that any such notice constitutes "reasonable notification" within the market price meaning of Section 9-504(3) of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, UCC (to the extent necessary under applicable law, the prior approval of such sale Section is applicable).
(b) The Collateral Agent or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the any Secured Party may be the purchaser of any or all of the Grantors' Collateral so sold at any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations or if otherwise permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind. The Grantors will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale and shall may be entitled, for made in compliance with
(c) For the purpose of bidding enforcing any and making settlement or payment all rights and remedies under this Agreement, the Collateral Agent may (i) require the Grantors to, and the Grantors agree that they will, at their expense and upon the request of the purchase price for Collateral Agent, forthwith assemble all or any portion part of its Collateral as directed by the Collateral sold Agent and make it available at any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral place designated by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)Collateral Agent which is, in the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge Collateral Agent's opinion, reasonably convenient to the purchaser Collateral Agent and the Grantors, whether at the premises of a Grantor or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereof. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgorotherwise, and each Pledgor hereby waives (ii) to the extent permitted by applicable law) all rights , enter, with or without process of redemptionlaw and without breach of the peace, stay or appraisal that it now has any premise where any such Collateral is or may at any time in be located and, without charge or liability to the future Collateral Agent, seize and remove such Collateral from such premises, (iii) have under any rule of law or statute now existing or hereafter enacted. The Secured Party shall not be obliged access to make any sale of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time and use the Grantors' books and records, computers and software relating to time by announcement at the time and place fixed thereforGrantors' Collateral, and such sale may(iv) prior to the disposition of any of the Grantors' Collateral, without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer store or transfer such Collateral without charge in or by means of any storage or transportation facility owned or leased by the Grantors, process, repair or recondition such Collateral or otherwise prepare it for disposition in any manner and to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matterthe extent the Collateral Agent deems appropriate and, in connection with such sale or other preparation and disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale use without charge any trademark, trade name, copyright, patent or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made technical process used by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth hereinGrantors.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of DefaultDefault has occurred and is continuing:
(i) the Collateral Agent may license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Intellectual Property included in the Secured Party mayCollateral throughout the world for such term or terms, subject to applicable lawon such conditions and in such manner as the Collateral Agent shall in its sole discretion determine;
(ii) the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time attempt time, enforce (and shall have the exclusive right to sell enforce) against any licensee or sublicensee all or any part rights and remedies of the Grantors in, to and under any Licenses and take or refrain from taking any action under any thereof, and each Grantor hereby releases the Collateral Agent and each of the Secured Parties from, and agrees to hold the Collateral Agent and each of the Secured Parties free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto except for the Collateral Agent's and such Secured Party's bad faith, gross negligence or willful misconduct as determined by a private placementfinal and nonappealable decision of a court of competent jurisdiction; and
(iii) upon request by the Collateral Agent, restricting the bidders Grantors will execute and prospective purchasers deliver to those who will represent the Collateral Agent powers of attorney, in form and agree that they are purchasing substance satisfactory to the Collateral Agent, for investment only and not for distributionthe implementation of any lease, assignment, license, sublicense, grant of option, sale or other disposition of any Intellectual Property. In doing so, the Secured Party may solicit offers to buy the Collateral or event of any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral disposition pursuant to this Section, each Pledgor agrees that, upon request the Grantors shall supply their know-how and expertise relating to the manufacture and sale of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliverproducts bearing Trademarks or the products or services made or rendered in connection with Patents or Copyrights, and cause the Subject Issuers its customer lists and the directors and officers thereof other records relating to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto Intellectual Property and to the related prospectuses whichdistribution of said products, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the CollateralAgent.
Appears in 1 contract
Sources: Security Agreement (Dixie Group Inc)
Remedies Upon Event of Default. (aA) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 9 hereof and (ii) if there shall be no such cash or otherwise dispose of Liquid Investments or if such cash and Liquid Investments shall be insufficient to 149 pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective of the impact of satisfactory. The Agent or any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Company will execute and deliver such documents and take such other action as the Agent deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any such sale of Collateral by the Secured Party (including pursuant Agent shall have the right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any Lien, claim or right on the part of whatsoever kind, including any equity or right of redemption of any PledgorCompany which may be waived, and each Pledgor hereby waives (Company, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 6 hereof shall (1) in case of a public sale, state the time and place fixed for such sale, and (2) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To In case of any sale of all or any part of the maximum extent permitted Collateral on credit or for future delivery, the Collateral so sold may be retained by lawthe Agent until the selling price is paid by the purchaser thereof, each Pledgor hereby waives but the Agent shall not incur any claim against liability in case of the Secured Party arising because failure of such purchaser to take up and pay for the price at which Collateral so sold and, in case of any such failure, such Collateral may have been again be sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offereeupon like notice. The Secured Party Agent, instead of exercising the power of sale herein conferred upon it, may disclaim proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any warrantyportion thereof, as to title under a judgment or as to any other matter, in connection with such sale decree of a court or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness courts of such sale or other dispositioncompetent jurisdiction.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(eB) For the purpose of enabling the Secured Party to exercise enforcing any and all rights and remedies under this Agreement the Agent may (i) require any Company to, and each Company agrees that it will, at such time as its expense and upon the Secured Party shall be lawfully entitled to exercise such rights and remediesrequest of the Agent, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty forthwith assemble all or other compensation to such Pledgor), to use, license or sublicense any part of the Collateral consisting as directed by the Agent and make it available at a place designated by the Agent which is, in its opinion, reasonably convenient to the Agent and such Company, whether at the premises of Intellectual Property now such Company or otherwise, (ii) to the extent permitted by applicable law, enter, with or without process of law and without breach of the peace, any premise where any 150 of the Collateral is or may be located, and without charge or liability to it seize and remove such Collateral from such premises, (iii) have access to and use such Company's books and records relating to the Collateral and (iv) prior to the disposition of the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or hereafter acquired leased by such PledgorCompany, and including process, repair or recondition it or otherwise prepare it for disposition in such license access to all media in which any of the licensed items may be recorded or stored manner and to all computer software the extent the Agent deems appropriate and, in connection with such preparation and programs disposition, use without charge any trademark, trade name, copyright, patent or technical process used for the compilation or printout thereof. The use of by such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of DefaultCompany.
(fC) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an if any Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders Default has occurred and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.continuing,
Appears in 1 contract
Sources: Credit Agreement (Lets Talk Cellular & Wireless Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have has occurred and be is continuing, the Secured Party Bank may exercise (or cause its agents to exercise) any or all of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) UCC, and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Bank may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law; (i) withdraw all cash and Liquid Investments in the Insurance Account and Cash Proceedings Account (collectively the "Collateral Accounts") and apply such cash and Liquid Investments and other cash, sellif any, then held by it as Collateral as specified in Section 5.04 and (ii) if there shall be no such cash or otherwise dispose Liquid Investments or if such cash and Liquid Investments shall be insufficient to pay all of the Obligations in full or cannot be so applied for any reason, sell the Collateral or any part thereof in one or more parcels at a public or private sale, at any exchange, broker s board or at any of the Secured Party s offices or elsewhere, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Bank may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Secured Party The Bank may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type that customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Borrower will execute and deliver such documents and take such other action as the Bank deems necessary or advisable in order that any such sale and shall may 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 all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salemade in compliance with law. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding)such sale, the receipt of bank shall have the Secured Party or of the officer making the sale shall be a sufficient discharge right to deliver, assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold to it absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorBorrower which may be waived, and each Pledgor hereby waives (the Borrower, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 5.01 shall (i) in the case of a public sale, state the time and place for such sale, and (ii) in the case of a private sale, state the day after which the sale may be consummated. 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 in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Bank may determine. The Bank shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, may be made at any time or place to which the same may be so adjourned without further notice, be made at the time and place to which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Bank until the selling price is paid by the purchaser thereof, but the Bank shall not incur any liability in the case of the failure of such purchaser to take up and pay for the collateral so sold and in, the case of any such failure, such Collateral may again be sold upon like notice. The Bank, instead of exercising the power of sale herein conferred upon it, may proceed by a private placementsuit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cashportion thereof, from under a limited number judgment or decree of investors reasonably believed by the Secured Party to be institutional investors a court or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party courts of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateralcompetent jurisdiction.
(gb) If For the Secured Party shall determine to exercise purpose of enforcing any and all rights and remedies under this Agreement the Bank may (i) require the Borrower to, and the Borrower agrees that it will, at its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, expense and upon request of the Secured PartyBank, such Pledgor will, forthwith assemble all or any part of the Collateral as directed by the Bank and make it available at its own expense:
(i) use its best efforts to execute and deliver, and cause a reasonable place designated by the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary orBank which is, in the opinion Bank's opinion, reasonably convenient to the Bank and the Borrower, whether at the premises of the Secured PartyBorrower or otherwise, desirable it being understood that the Borrower's obligation so to register such deliver the Collateral under the provisions is of the Securities Actessence of this Agreement and that, and accordingly, upon application to cause a court of equity having jurisdiction, the registration statement relating thereto Bank shall be entitled to become effective and to remain effective for a decree requiring specific performance by the Borrower of such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
obligations; (ii) use its best efforts to execute the extent permitted by applicable law, enter, with or without process of law and deliverwithout breach of the peace, any premise where any of the Collateral is or may be located, and cause without charge or liability to the Subject Issuers Bank seize and remove such Collateral from such premises; (iii) have access to and use the directors Borrower's books and officers thereof records relating to execute the Collateral; and deliver, all such instruments and documents, and (iv) prior to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale disposition of the Collateral, as requested store or transfer it without charge in or by means of any storage or transportation facility owned or leased by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holdersBorrower, as soon as practicableprocess, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do repair or cause to be done all such other acts recondition it or otherwise prepare it for disposition in any manner and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, extent the Secured Party is under no obligation to marshal any Bank reasonably deems appropriate. The Bank may also dispose of such Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralon such premises without liability for rent or costs.
Appears in 1 contract
Sources: Security Agreement (Trex Co Inc)
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Agent may exercise (or cause its agents to exercise) any or all on behalf of the Secured Parties, in addition to all other rights and remedies available granted to it in this Agreement (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoingincluding, if an Event of Default shall have occurred and be continuingwithout limitation, the rights and remedies specified in Section 7 hereof), the other Loan Documents and in any other agreement, document or instrument securing, evidencing or relating to the Secured Party may exercise
(i) Obligations, all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Agent may, without being required to give any notice, except as herein or in the Credit Agreement provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 9 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Agent may deem commercially reasonable, irrespective satisfactory. The Agent or any of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply). To the maximum extent permitted by applicable law, the Secured Party Banks may be the purchaser of any or all of the Collateral at any such sale 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 so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Pledgor agrees to execute and deliver such public documents and take such action as the Agent deems reasonably necessary or advisable in order that such sale may be made in compliance with law. The Agent is authorized, in connection with any such sale, if it deems it advisable so to use and apply all of any part of do, (i) to restrict the Secured Obligations as a credit prospective bidders on account of the purchase price of any Collateral payable at such sale. Upon any sale of Collateral by the Secured Party (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Pledged Note to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of the Pledged Note, (ii) to cause to be placed on the Pledged Note or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933, as from time to time amended (the "Act"), and may not be disposed of in violation of the provisions of the Act, and (iii) to impose such other limitations or conditions in connection with any such sale as the Agent deems necessary or advisable in order to comply with the Act or any other law. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Agent deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale the Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any Pledgor which may be waived, and the Pledgor, and each Pledgor hereby waives (to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 7 shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix in the notice of such sale. The Agent shall not be obliged obligated to make any such sale of Collateral regardless of notice of sale having been givenpursuant to any such notice. The Secured Party may 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 thereforfor the sale, and such sale may, without further notice, may be made at the any time and or place to which it was the same may be so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, the Secured Party may resell the same, subject to the same rights and duties set forth herein.
(d) Notice case of any such sale or other disposition shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Default.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Agent until the selling price is paid by the purchaser thereof, but the Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Agent, instead of exercising the power of sale herein conferred upon it, may proceed by a private placement, restricting the bidders and prospective purchasers suit or suits at law or in equity to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy foreclose its security interests in the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing and sell the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion thereof, under a judgment or decree of the Collateral pursuant to this Section, each Pledgor agrees that, upon request a court or courts of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateralcompetent jurisdiction.
Appears in 1 contract
Remedies Upon Event of Default. (a) If an any Event of Default shall have occurred and be continuing, the Secured Party Collateral Agent may exercise (or cause its agents to exercise) any or all on behalf of the remedies available to it (or to such agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of Default shall have occurred and be continuing, the Secured Party may exercise
(i) Parties all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and (ii) all the powers given by section 30 of the Conveyancing Act 1983 of Bermuda (the Conveyancing Act ) with respect to any Collateral and, in addition, the Secured Party Collateral Agent may, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, sell(i) apply the cash, if any, then held by it as Collateral as specified in Section 13 and (ii) if there shall be no such cash or otherwise dispose of if such cash shall be insufficient to pay all the Secured Obligations in full, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker s board sale or at any of the Secured Party s offices broker's board or elsewhereon any securities exchange, for cash, on upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Secured Party Collateral Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral; provided that the right of the Secured Party to sell or otherwise dispose of an Equity Interest in any Regulated Subsidiary shall be subject to the Secured Party s or the relevant Pledgor s obtaining, to the extent necessary under applicable law, the prior approval of such sale or other disposition by the Governmental Authority having jurisdiction with respect to such Regulated Subsidiary; and provided, further, that the Pledgor waives its rights under section 29 of the Conveyancing Act of Bermuda and agrees that section 31 of such Conveyancing Act shall not apply)satisfactory. To the maximum extent permitted by applicable law, the Any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). The Collateral Agent is authorized, in connection with any such sale, if it deems it advisable so to do, (A) to restrict the prospective bidders on or purchasers of any of the Pledged Securities to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Pledged Securities, (B) to cause to be placed on certificates for any or all of the Pledged Securities or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (C) to impose such other limitations or conditions in connection with any such sale and shall be entitled, for as the purpose of bidding and making settlement Collateral Agent reasonably deems necessary or payment of the purchase price for all advisable in order to comply with said Act or any portion of other law. The Borrower will execute and deliver such documents and take such other action as the Collateral sold at Agent reasonably deems necessary or advisable in order that any such public sale, to use and apply all of any part of the Secured Obligations as a credit on account of the purchase price of any Collateral payable at such salesale may be made in compliance with law. Upon any such sale of the Collateral by Agent shall have the Secured Party (including pursuant right to a power of sale granted by statute or under a judicial proceeding)deliver, the receipt of the Secured Party or of the officer making the sale shall be a sufficient discharge assign and transfer to the purchaser or purchasers of thereof the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid to the Secured Party or such officer or be answerable in any way for the misapplication thereofsold. Each purchaser at any such sale shall hold the property Collateral so sold absolutely and free from any claim or right on of whatsoever kind, including any equity or right of redemption of the part of any PledgorBorrower which may be waived, and each Pledgor hereby waives (the Borrower, to the extent permitted by law) , hereby specifically waives all rights of redemption, stay or appraisal that which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enactedadopted. The Secured Party notice (if any) of such sale required by Section 9 shall not be obliged to make any sale (1) in the case of Collateral regardless of notice of sale having been given. The Secured Party may adjourn any a public or private sale from time to time by announcement at sale, state the time and place fixed thereforfor such sale, and (2) in the case of a sale at a broker's board or on a securities exchange, state the board or exchange at which such sale may, without further notice, is to be made at and the time and place to day on which it was so adjourned. To the maximum extent permitted by law, each Pledgor hereby waives any claim against the Secured Party arising because the price at which any Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale, even if the Secured Party accepts the first offer received and does not offer such Collateral to more than one offeree. The Secured Party may disclaim any warranty, as to title or as to any other matter, in connection with such sale or other disposition, and its doing so shall not be considered adversely to affect the commercial reasonableness of such sale or other disposition.
(c) If the Secured Party sells any of the Collateral upon credit, the Pledgors will be credited only with payment actually made by the purchaser, received by the Secured Party and applied in accordance with Section 12 hereof. In the event the purchaser fails to pay for the Collateral, or the Secured Party may resell portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the samecase of a private sale, subject to state the same rights and duties set forth herein.
(d) Notice of any day after which such sale or other disposition may be consummated. Any such public sale shall be given to the relevant Pledgor(s) as (and if) required by Section 14.
(e) For the purpose of enabling the Secured Party to exercise rights and remedies under this Agreement held at such time or times within ordinary business hours and at such place or places as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to Collateral Agent may fix in the Secured Party an irrevocable license (exercisable without payment of royalty or other compensation to such Pledgor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, and including in such license 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 notice of such license by the Secured Party may be exercised only upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Secured Party in accordance herewith shall be binding upon such Pledgor notwithstanding any subsequent cure of an Event of Defaultsale.
(f) Each Pledgor hereby acknowledges that the sale by the Secured Party of any Collateral pursuant to the terms hereof in compliance with the Securities Act as well as applicable Blue Sky or other state securities laws may require strict limitations as to the manner in which the Secured Party or any subsequent transferee of the Collateral may dispose thereof. Each Pledgor acknowledges and agrees that in order to protect the Secured Party s interests it may be necessary to sell the Collateral at a price less than the maximum price attainable if the sale were delayed or were made in another manner, such as a public offering under the Securities Act. Each Pledgor agrees that the Secured Party shall have no obligation to delay the sale or to register under the Securities Act in order to obtain the maximum possible price for the Collateral. Without limiting the generality of the foregoing, each Pledgor agrees that, upon the occurrence and during the continuation of an Event of Default, the Secured Party may, subject to applicable law, from time to time attempt to sell all or any part of the Collateral by a private placement, restricting the bidders and prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In doing so, the Secured Party may solicit offers to buy the Collateral or any part thereof for cash, from a limited number of investors reasonably believed by the Secured Party to be institutional investors or other accredited investors who might be interested in purchasing the Collateral. If the Secured Party shall solicit such offers, then the acceptance by the Secured Party of one of the offers shall be deemed to be a commercially reasonable method of disposing of the Collateral.
(g) If the Secured Party shall determine to exercise its right to sell all or any portion of the Collateral pursuant to this Section, each Pledgor agrees that, upon request of the Secured Party, such Pledgor will, at its own expense:
(i) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to register such Collateral under the provisions of the Securities Act, and to cause the registration statement relating thereto to become effective and to remain effective for such period as prospectuses are required by law to be furnished, and to make all amendments and supplements thereto and to the related prospectuses which, in the opinion of the Secured Party, are necessary or desirable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto;
(ii) use its best efforts to execute and deliver, and cause the Subject Issuers and the directors and officers thereof to execute and deliver, all such instruments and documents, and to do so or cause to be done all such other acts and things, as may be necessary or, in the opinion of the Secured Party, desirable to qualify the Collateral under state securities laws or Blue Sky laws and to obtain all necessary approvals from relevant Governmental Authorities for the sale of the Collateral, as requested by the Secured Party;
(iii) cause the Subject Issuers to make available to their respective security holders, as soon as practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the Securities Act; and
(iv) do or cause to be done all such other acts and things as may be necessary or, in the Secured Party s opinion, desirable to facilitate such sale of the Collateral or any part thereof in compliance with applicable law. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section may be specifically enforced. Each of the Pledgors acknowledges and agrees that in exercising any rights under or with respect to the Collateral, the Secured Party is under no obligation to marshal any Collateral and may in its absolute discretion realize upon the Collateral in any order to any extent it so elects, and each Pledgor waives any right to require the marshaling of any of the Collateral.
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Sources: Pledge Agreement (Unova Inc)