Remedies Upon the Occurrence of an Event of Default. (a) If an Event of Default has occurred and has not been waived, the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, by notice to the Borrower (a “Notice of Termination”), declare all of the Secured Obligations to be immediately due and payable (except that, in the case of any event described in Section 8.01(f), all of the Secured Obligations shall automatically become immediately due and payable) and the Facility Limit and Commitments shall be terminated without presentment, demand, protest or notice of any kind (except as expressly required in this Section 8.02), all of which are hereby expressly waived by the Borrower. On and after the occurrence of an Event of Default that has not been waived, the Lenders shall fund no further Loan Increases. In addition, (i) following the occurrence of an Event of Default, the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, terminate TFL or any Affiliate thereof as Servicer pursuant to Section 4.1 of the Warehouse SUBI Servicing Agreement (but may, at the Administrative Agent’s option, retain the services of [***] as subservicer), and (ii) following the occurrence of an Event of Default (and in no event before the occurrence of an Event of Default), the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, exercise its rights and remedies under the Control Agreements relating to the Reserve Account and the Warehouse SUBI Collection Account and as otherwise contemplated herein. In addition, following the occurrence of an Event of Default, the Loan Balance shall accrue interest at the Default Rate in accordance with Section 2.02. (b) In addition to all rights and remedies under this Agreement or otherwise, the Administrative Agent shall have all other rights and remedies provided under the Relevant UCC and under other applicable laws, which rights shall be cumulative. Without limiting the generality of the foregoing, if an Event of Default has occurred and has not been waived, the Administrative Agent may, with prior written consent from each Group Agent, and shall, at the written direction of each Group Agent, sell the Collateral or any part thereof in any commercially reasonable manner at public or private sale, for cash, upon credit or for future delivery, and at such price or prices as the Administrative Agent may deem satisfactory. The Borrower will execute and deliver such documents and take such other action as the Administrative Agent reasonably deems necessary or advisable in order that any such sale may be made in compliance with applicable law. Upon any such sale, the Administrative Agent 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 to it absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Borrower which may be waived, and the Borrower, 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 adopted. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, shall, at the direction, or may with the consent, of the Group Agents proceed by a suit or suits at law or in equity to foreclose the security interests in the Collateral and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. (c) In furtherance of the rights, powers and remedies of the Administrative Agent, the Borrower hereby irrevocably appoints the Administrative Agent as its true and lawful attorney, with full power of substitution, in the name of the Borrower, or otherwise, for the sole use and benefit of the Administrative Agent (for the further benefit of the Secured Parties), but at the Borrower’s expense, to the extent permitted by law to exercise, at any time and from time to time if an Event of Default has occurred and has not been waived, all or any of the following powers with respect to all or any of the Collateral: (i) to demand, ▇▇▇ for, collect, receive and give acquittance for any and all monies due or to become due thereon or by virtue thereof, (ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto, (iii) to sell, transfer, assign or otherwise deal in or with the Collateral or the proceeds or avails thereof, as fully and effectually as if the Administrative Agent were the absolute owner thereof, and (iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided, that the Administrative Agent shall give the Borrower at least ten (10) days prior written notice of the time and place of any public sale or the time after which any private sale or other intended disposition of any of the Collateral is to be made. The Borrower agrees that such notice constitutes “reasonable authenticated notification” within the meaning of Section 9-611(b) of the UCC (or other section of similar content of the Relevant UCC). (d) Notwithstanding anything to the contrary contained in this Agreement, if at any time the rights, powers and privileges of the Administrative Agent following the occurrence of an Event of Default conflict (or are inconsistent) with the rights and obligations of the Servicer, the rights, powers and privileges of the Administrative Agent shall supersede the rights and obligations of the Servicer to the extent of such conflict (or inconsistency), with the express intent of maximizing the rights, powers and privileges of the Administrative Agent following the occurrence of an Event of Default. (e) The Administrative Agent agrees with the Borrower, with respect to any Control Agreement and the related deposit or securities account, that the Administrative Agent will not deliver a “Notice of Exclusive Control” or “Access Termination Notice” (as defined in such Control Agreement) to the applicable securities intermediary or account bank except after an Event of Default has occurred that has not been waived. (f) The parties hereto acknowledge that this Agreement is, and is intended to be, a contract to extend financial accommodations to the Borrower within the meaning of Section 365(e)(2)(B) of the Bankruptcy Code (or any amended or successor provision thereof or any amended or successor code).
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Remedies Upon the Occurrence of an Event of Default. and at any time while such Event of Default is continuing, the Lender:
(a) If an Event of Default has occurred and has not been waived, may accelerate the Administrative Agent shall, at the request, or may with the consent, due date of the Group Agents, by notice to the Borrower (a “Notice of Termination”), declare all unpaid principal balance of the Secured Obligations to be immediately due and payable (except that, in the case of any event described in Section 8.01(f)Notes, all of the Secured Obligations shall automatically become accrued but unpaid interest thereon and all other amounts payable under this Agreement making such amounts immediately due and payable) , whereupon the Notes, all such interest and the Facility Limit all such amounts shall become and Commitments shall be terminated forthwith immediately due and payable, without presentment, notice of intent to accelerate or notice of acceleration, demand, protest or further notice of any kind (except as expressly required in this Section 8.02)kind, all of which are hereby expressly waived by the Borrower. On ; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, the Notes, all such interest and after all such amounts shall automatically become due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the occurrence of Borrower; and provided further that with respect to an Event of Default that has not been waived, the Lenders shall fund no further Loan Increases. In addition, (i) following the occurrence of an Event of Default, the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, terminate TFL or any Affiliate thereof as Servicer pursuant to Section 4.1 of the Warehouse SUBI Servicing Agreement (but may, at the Administrative Agent’s option, retain the services of [***] as subservicer6.02(t), and Borrower shall have sixty (ii60) following days from the occurrence of an Event of Default (and in no event before the occurrence of an Event of Default), the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, exercise its rights and remedies under the Control Agreements relating to the Reserve Account and the Warehouse SUBI Collection Account and as otherwise contemplated herein. In addition, following the occurrence of an Event of Default, the Loan Balance shall accrue interest at the Default Rate in accordance with Section 2.02.AgStar Notice Date to
(b) In addition may withhold or direct the Disbursing Agent to all rights withhold any one or more Advances in its discretion, and remedies terminate the Lender’s obligations, if any, under this Agreement or otherwise, to make any Advances whereupon the Administrative Agent shall have all other rights commitment and remedies provided under the Relevant UCC and under other applicable laws, which rights shall be cumulative. Without limiting the generality obligations of the foregoing, if an Event of Default has occurred and has not been waived, the Administrative Agent may, with prior written consent from each Group AgentLender to extend credit or to make Advances hereunder shall terminate, and shall, at no disbursement of Loan funds by the written direction Lender will cure any default of each Group Agent, sell the Collateral or any part thereof in any commercially reasonable manner at public or private sale, for cash, upon credit or for future delivery, and at such price or prices as the Administrative Agent may deem satisfactory. The Borrower will execute and deliver such documents and take such other action as the Administrative Agent reasonably deems necessary or advisable in order that any such sale may be made in compliance with applicable law. Upon any such sale, the Administrative Agent 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 to it absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Borrower which may be waived, and the Borrower, to unless 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 adopted. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, shall, at the direction, or may with the consent, of the Group Agents proceed by a suit or suits at law or Lender agrees otherwise in equity to foreclose the security interests in the Collateral and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.writing;
(c) In furtherance may, by notice to the Borrower, obtain the appointment of a receiver to take possession of all Collateral of the rightsBorrower, powers including, but not limited to all personal property, including all fixtures and remedies equipment leased, occupied or used by any of the Administrative Agent, the Borrower. Borrower hereby irrevocably consents to the appointment of such receiver and agrees to cooperate and assist any such receiver as reasonably requested to facilitate the transfer of possession of the Collateral to such receiver and to provide such receiver access to all books, records, information and documents as requested by such receiver;
(d) in its discretion, enter the Real Property and take any and all actions necessary in its judgment to complete construction of the Project, including but not limited to making changes in Plans and Specifications, work or materials, and entering into, modifying, or terminating any contractual arrangements, subject to the Lender’s right at any time to discontinue any work without liability. If the Lender elects to complete the Project, it will not assume any liability to the Borrower or any other person for completing the Project or for the manner or quality of construction of the Project, and the Borrower expressly waives any such liability. The Borrower irrevocably appoints the Administrative Agent Lender as its true and lawful attorney-in-fact, with full power of substitution, to complete the Project in the name Borrower’s name, or the Lender may elect to complete construction in its own name. In any event, all sums expended by the Lender in completing construction will be considered to have been disbursed to the Borrower and will be secured by the Mortgage and any other instruments or documents securing the Loans, and any such sums that cause the principal amount of the Loans to exceed the face amount of the Notes will be considered to be an additional loan to the Borrower bearing interest at the rate provided in the Notes and will be secured by the Mortgage and any other instrument or documents securing the Loans. The Lender will not have any obligation under the Plans and Specifications prepared for the Project, any studies, data, and drawings with respect thereto prepared by or for Borrower, or otherwisethe contracts and agreements relating to the Plans and Specifications, for or the sole use aforesaid studies, data, and benefit drawings, or to the construction of the Administrative Agent (for Project unless it expressly hereafter agrees in writing. The Lender will have the further benefit right to exercise any rights of the Secured Parties)Borrower under those contracts and agreements or with respect to such Plans and Specifications, but at studies, data, and drawings upon any default by the Borrower’s expenseBorrower under this Agreement, and shall have such other rights and remedies with respect thereto as are afforded a secured creditor under applicable law;
(e) in its discretion, with respect to the extent permitted by law to exercise, at any time and from time to time if an Event of Default has occurred and has not been waivedpursuant to Section 6.02(t), all or any of direct Borrower to sell the following powers with respect Project pursuant to all or any of the Collateral:
(i) terms acceptable to demandLender, ▇▇▇ for, collect, receive and give acquittance for any and all monies due or to become due thereon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the Collateral or the proceeds or avails thereofof which sale shall be applied promptly to pay the outstanding Loan Obligations, together with such additional funds as fully and effectually as if may be required to pay the Administrative Agent were the absolute owner thereof, outstanding Loan Obligations in full; and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided, that the Administrative Agent shall give the Borrower at least ten (10) days prior written notice of the time and place of any public sale or the time after which any private sale or other intended disposition of any of the Collateral is to be made. The Borrower agrees that such notice constitutes “reasonable authenticated notification” within the meaning of Section 9-611(b) of the UCC (or other section of similar content of the Relevant UCC).
(d) Notwithstanding anything to the contrary contained in this Agreement, if at any time the rights, powers and privileges of the Administrative Agent following the occurrence of an Event of Default conflict (or are inconsistent) with the rights and obligations of the Servicer, the rights, powers and privileges of the Administrative Agent shall supersede the rights and obligations of the Servicer to the extent of such conflict (or inconsistency), with the express intent of maximizing the rights, powers and privileges of the Administrative Agent following the occurrence of an Event of Default.
(e) The Administrative Agent agrees with the Borrower, with respect to any Control Agreement and the related deposit or securities account, that the Administrative Agent will not deliver a “Notice of Exclusive Control” or “Access Termination Notice” (as defined in such Control Agreement) to the applicable securities intermediary or account bank except after an Event of Default has occurred that has not been waived.
(f) The parties hereto acknowledge that this Agreement is, may exercise all other rights and is intended to be, a contract to extend financial accommodations remedies afforded to the Borrower within Lender under the meaning of Section 365(e)(2)(B) of the Bankruptcy Code (Loan Documents or any amended by applicable law or successor provision thereof or any amended or successor code)equity.
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Sources: Construction and Term Loan Agreement (Otter Tail Ag Enterprises, LLC)
Remedies Upon the Occurrence of an Event of Default. (a) If an Event of Default has occurred and has not been waivedis continuing, the Administrative Facility Agent shallmay (with the consent of the Required Committed Lenders), or at the request, or may with the consent, direction of the Group AgentsRequired Committed Lenders shall, by notice to the Borrower (a “Notice of Termination”)and the Servicer, declare all of the Secured Obligations Termination Date to be immediately due and payable (except thathave occurred; provided, however, that in the case of any event described in Section 8.01(f)7.1(e) above, all of the Secured Obligations shall automatically become immediately due and payable) and the Facility Limit and Commitments Termination Date shall be terminated without presentment, demand, protest or notice of any kind (except as expressly required in this Section 8.02), all of which are hereby expressly waived by the Borrower. On and after deemed to have occurred automatically upon the occurrence of an Event of Default that has not been waived, such event. At all times after the Lenders shall fund no further Loan Increases. In addition, (i) following the declaration or automatic occurrence of an Event of Default, the Administrative Agent shall, at the request, or may with the consent, of the Group Agents, terminate TFL or any Affiliate thereof as Servicer Termination Date pursuant to this Section 4.1 of the Warehouse SUBI Servicing Agreement (but may, at the Administrative Agent’s option, retain the services of [***] as subservicer), and (ii) following the occurrence of an Event of Default (and in no event before the occurrence of an Event of Default7.2(a), the Administrative Agent shall, at Base Rate plus 2% shall be the request, or may with the consent, of the Group Agents, exercise its rights and remedies under the Control Agreements relating Yield Rate applicable to the Reserve Account and the Warehouse SUBI Collection Account and as otherwise contemplated herein. In addition, following the occurrence of an Event of Default, the Loan Balance shall accrue interest at the Default Rate in accordance with Section 2.02.
(b) In addition to all rights and remedies under this Agreement or otherwise, the Administrative Agent shall have all other rights and remedies provided under the Relevant UCC and under other applicable laws, which rights shall be cumulative. Without limiting the generality of the foregoingFacility Outstanding Principal and, if an Event of Default has occurred, all Aggregate Unpaids shall become immediately due and payable. If an event or condition shall have occurred and has not been waivedwhich constitutes a Potential Event of Default, the Administrative Facility Agent may, with prior written consent from each Group Agent, and shall, may (at the written direction of each Group Agentthe Required Committed Lenders), sell the Collateral or any part thereof in any commercially reasonable manner at public or private sale, for cash, upon credit or for future delivery, and at such price or prices as the Administrative Agent may deem satisfactory. The Borrower will execute and deliver such documents and take such other action as the Administrative Agent reasonably deems necessary or advisable in order that any such sale may be made in compliance with applicable law. Upon any such sale, the Administrative Agent shall have the right by notice 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 to it absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Borrower which may be waived, and the Borrower, to the extent permitted by applicable law, hereby specifically waives all rights of redemption, stay declare such event or appraisal which it has or may have under any law now existing or hereafter adopted. The Administrative Agent, instead of exercising the power of sale herein conferred upon it, shall, at the direction, or may with the consent, of the Group Agents proceed by condition a suit or suits at law or in equity to foreclose the security interests in the Collateral and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(c) In furtherance of the rights, powers and remedies of the Administrative Agent, the Borrower hereby irrevocably appoints the Administrative Agent as its true and lawful attorney, with full power of substitution, in the name of the Borrower, or otherwise, for the sole use and benefit of the Administrative Agent (for the further benefit of the Secured Parties), but at the Borrower’s expense, to the extent permitted by law to exercise, at any time and from time to time if an Event of Default has occurred and has not been waived, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, ▇▇▇ for, collect, receive and give acquittance for any and all monies due or to become due thereon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the Collateral or the proceeds or avails thereof, as fully and effectually as if the Administrative Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided, that the Administrative Agent shall give the Borrower at least ten (10) days prior written notice of the time and place of any public sale or the time after which any private sale or other intended disposition of any of the Collateral is to be made. The Borrower agrees that such notice constitutes “reasonable authenticated notification” within the meaning of Section 9-611(b) of the UCC (or other section of similar content of the Relevant UCC).
(d) Notwithstanding anything to the contrary contained in this Agreement, if at any time the rights, powers and privileges of the Administrative Agent following the occurrence of an Event of Default conflict (or are inconsistent) with the rights and obligations of the Servicer, the rights, powers and privileges of the Administrative Agent shall supersede the rights and obligations of the Servicer to the extent of such conflict (or inconsistency), with the express intent of maximizing the rights, powers and privileges of the Administrative Agent following the occurrence of an Potential Event of Default.
(eb) The Administrative Agent agrees with In addition, if the BorrowerTermination Date has been declared pursuant to Section 7.2(a), with (i) the Facility Agent, on behalf of the Lenders and the Group Agents, shall have all of the rights and remedies provided to a secured creditor under the Relevant UCC and other applicable law in respect thereto, (ii) the Facility Limit shall be reduced as of each calendar date thereafter to equal the Facility Outstanding Principal as of such date, and (iii) the Facility Agent, at the direction of the Required Committed Lenders, shall take any Control other action available to it under this Agreement and the related deposit or securities accountother Transaction Documents (including, that but not limited to, exercising its rights under Section 2.7 and Article VI hereof, under the Administrative Agent will not deliver a “Notice Custodial Agreement and its rights of Exclusive Control” or “Access Termination Notice” (as defined control of the Collection Account in such accordance with the Account Control Agreement) to the applicable securities intermediary or account bank except after an Event of Default has occurred that has not been waived.
(f) The parties hereto acknowledge that this Agreement is, and is intended to be, a contract to extend financial accommodations to the Borrower within the meaning of Section 365(e)(2)(B) of the Bankruptcy Code (or any amended or successor provision thereof or any amended or successor code).
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