Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Grantee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Grantee's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's request, to assemble its Collateral and make it available to Grantee at places which Grantee shall reasonably select, whether at Grantor's premises or elsewhere. Grantee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency. (b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction. (c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder. (d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Crdentia Corp)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the IP Security Agreement, the Notes or the Purchase Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor the Company expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Company or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Intellectual Property, Intellectual Property Right or process used or owned by the Company and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor the Company has the right to do so, each Grantor the Company authorizes GranteeSecured Party, on the terms set forth in this Section 7, 8 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor the Company hereby releases. Each Grantor The Company further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's the Company’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below8(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantorthe Company. To the maximum extent permitted by applicable law, each Grantor the Company waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor The Company agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantorthe Company, Grantor the Company also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each Grantor As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 8(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) The Company agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor the Company further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor the Company for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor The Company also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment The Company hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRSTFirst, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECONDSecond, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLYFinally, upon payment in full of the Secured Obligations, to Grantor the Company or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Collateral Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and the Note Agreement, any other Loan Documents and under any other instrument Pledged Instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under any applicable Requirement of Law, including the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethat, during the continuance of an Event of Default, the Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other any applicable lawRequirement of Law), may shall have the right to collect the Proceeds from all Collateral (including dividends on pledged Collateral) and may:
(i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral,
(ii) upon five (5) Business Days' prior notice to the Grantors, license any of the Patents, Trademarks or Copyrights, throughout the world for such term or terms, on such conditions, and in connection with such manner, as the liquidation Collateral Agent shall in its sole discretion determine, whether general, special or otherwise, and on an exclusive or nonexclusive basis,
(iii) enforce (and, upon notice to the Grantors, shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the CollateralGrantors in, to and under any one or more license agreements with respect to the Collateral (without assuming any obligations or liability thereunder), and take or refrain from taking any action under any thereof,
(iiiv) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract Contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Granteethe Administrative Agent's or Collateral Agent's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To , and
(v) exercise (A) all voting, consent, corporate and other rights pertaining to the extent pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant Grantor has of pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other structure of any issuer of pledged Collateral, the right to deposit and deliver any and all of the pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing.
(b) Each Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 7, to (i) enter the premises where the Collateral is located, to (ii) take possession of the Collateral, or any part of it, and to (iii) pay, purchase, contract, contest or compromise any encumbrance, charge, or lien Lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by lawapplicable any Requirement of Law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption such Grantor hereby releases. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Granteethe Collateral Agent's request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted not prohibited by any applicable lawRequirement of Law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of the Collateral Agent as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' prior notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(bc) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933 (the "Act"), the Collateral Agent may, in its discretion (subject only to applicable requirements of any applicable Requirement of Law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(c), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act, (ii) approach and negotiate with a single possible purchaser to effect such sale, and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(c), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to any Requirement of Law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other Requirement of Law affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(d) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of any applicable law Requirement of Law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the dividend or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authorityGovernmental Authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(ce) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable including attorneys' feesfees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(df) After payment Each Grantor hereby waives presentment, protest or any notice or demand not provided for herein (to the maximum extent not prohibited by any applicable Requirement of Law) of any debt secured by a Permitted Lien, the Proceeds kind in connection with this Security Agreement or any Collateral.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be be, subject to the terms of the Intercreditor Agreement, distributed by Grantee the Collateral Agent or the Administrative Agent in the following order of priorities: FIRST, to Grantee priority set forth in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full Section 2.13 of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directCredit Agreement.
Appears in 1 contract
Sources: Security Agreement (Cinedigm Corp.)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee Lender may exercise exercise, in addition to all other rights and remedies granted to it under this Guaranty and Security Agreement and Agreement, the Note Loan Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCCUCC or any other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeLender, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Grantor or any other person (all and each of which demands, presentments, protests, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, ; and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and and/or may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeLender's offices or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Each Grantor authorizes GranteeLender, on the terms set forth in this Section SECTION 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeLender, appears to be prior or superior to its security interest. Grantee Lender shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agrees, at GranteeLender's request, to assemble its the Collateral and make it available to Grantee Lender at places which Grantee Lender shall reasonably select, whether at such Grantor's premises or elsewhere. Grantee Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such applicationthe Loan Agreement, and only after so paying over such net proceeds and after the payment by Grantee Lender of any other amount required by any provision of law, including Section 9504(1)(c) of the UCC, need Grantee Lender account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Lender. Each Grantor agrees that Grantee Lender need not give more than ten (10) days' prior written notice (which notification shall be deemed given in accordance with the Loan Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.reasonable
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the Note, the Purchase Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeSecured Party's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, purchase or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeSecured Party's request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the "ACT"), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is be continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the IP Security Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC, any other applicable law or in equity. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act of 1933, as amended (as so amended the “Act”), the Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRSTFirst, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECONDSecond, to Grantee in an Secured Party the amount equal to of the then unpaid Secured Obligations; and FINALLYFinally, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (ZP Holdings Inc)
Rights and Remedies Upon Default. Beginning on the date which is ten (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after 10)business daysafter any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) The Secured Party may exercise in addition to all other rights and remedies granted to it the Secured Party under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsAgreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Secured Party’s request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee the Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Party need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Party shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Party may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Party may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Secured Party shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Secured Party may, in their discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Party in the following order of priorities: FIRST, to Grantee the Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee the Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Party in an amount equal to the then unpaid Secured ObligationsObligations of the Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. Beginning on the date which is ten (a10) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, business days after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Majority Lenders or C5, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it them under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Notes all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Majority Lenders’ or C5’s request, to assemble its the Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Parties shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor ▇▇▇▇▇▇▇ also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(d) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRSTFirst, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECONDSecond, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLYFinally, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
(f) The costs of enforcing or pursuing any right or remedy hereunder, including without limitation any repossession, sale, possession and management (including, without limitation, reasonable attorneys’ fees), and distribution shall be borne Pro Rata by the Secured Parties. Each Secured Party shall reimburse each other Secured Party, as applicable, for its Pro Rata share of all such costs promptly upon demand.
Appears in 1 contract
Sources: Security Agreement (IronNet, Inc.)
Rights and Remedies Upon Default. It shall be an “Event of Default” hereunder if any Event of Default (aas defined in the Note Agreement or the Guaranty Agreement) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after shall occur. If any Event of Default shall have occurred and while such be continuing, the Collateral Agent shall have the following rights and remedies as set forth in this Section 8:
(a) If any Event of Default is shall occur and be continuing, Grantee the Collateral Agent may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Agreement, the Guaranty Agreement, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCCUCC and other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by such Grantor, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Collateral Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent any Grantor has the right to do so, each such Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 78, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent or any Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's ’s premises or elsewhere. Grantee The Collateral Agent and the Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(h), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of law, need Grantee the Collateral Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent or any Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ notice (which notification shall be deemed given if sent in accordance with Section 12(a)) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee is the Collateral Agent and the Secured Parties are entitled from such Grantor, such Grantor also being liable for the attorney costs attorneys’ fees and expenses of any attorneys employed by Grantee the Collateral Agent or any Secured Party to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable Requirements of Law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem desirable, but subject to the other requirements of this Section 8(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion: (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem desirable in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent nor any Secured Party be liable nor accountable to such Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs costs, and reasonable expenses of Granteethe Collateral Agent or any of the Secured Parties, including, without limitation, including reasonable attorneys' fees’ fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Upon the Collateral Agent’s request, each Grantor agrees that it will promptly execute assignments of its entire right, title and interest in and to each its Patents, Trademarks, Copyrights, and Licenses. Such assignments shall be in form and content which is recordable in the United States Patent and Trademark Office or Copyright Office, or any similar office or agency in any other country or any political subdivision thereof, as applicable, and otherwise reasonably acceptable to the Collateral Agent.
(f) Except as otherwise expressly permitted herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by kind in connection with this Agreement or any Collateral.
(g) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 8 will cause irreparable injury to the Collateral Agent, on behalf of itself and the Secured Parties, that in such event the Collateral Agent and the Secured Parties would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 8 shall be specifically enforceable against such Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(h) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRSTFirst, to Grantee the Collateral Agent in an amount sufficient to pay in full the reasonable costs of Grantee the Collateral Agent in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Collateral Agent in connection therewith, including, without limitation, including reasonable attorneys' fees’ fees and expenses; SECONDSecond, to Grantee the Secured Parties in an amount sufficient to pay in full the reasonable costs of the Secured Parties in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by the Secured Parties in connection therewith, including reasonable attorneys’ fees and expenses; Third, to the Secured Parties in an amount equal to the then unpaid principal of and accrued interest, Breakage Cost Indemnity, non-usage and all other fees and charges payable on the Secured Obligations; Fourth, to the Secured Parties in an amount equal to any other Secured Obligations under any of the Transaction Documents which are then unpaid; and FINALLYFinally, upon payment in full of all of the Secured Obligations, to Grantor the Grantors or its representatives, in accordance with the UCC their representatives according to their interests or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee subject to applicable Gaming Laws:
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below7(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each Grantor agrees that in As to any sale of Collateral constituting certificated securities or uncertificated securities, if, at any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized time when Secured Party shall determine to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order exercise its right to avoid any violation of applicable law (including compliance with such procedures as may restrict sell the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all whole or any part of such Collateral hereunder, such Collateral or the Collateral part thereof to be sold shall be distributed by Grantee in the following order of priorities: FIRSTnot, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such salefor any reason whatsoever, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.be
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Upon occurrence and during the rights continuance of Senior Lender an Event of Default, Secured Party may at its option accelerate Debtor’s payment obligations under the Loan Documents Secured Promissory Note and Section 3 hereofshall have, after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement the Loan Documents and applicable law, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCCCalifornia Commercial Code, including, without limitation, the right to take possession of and/or sell the Collateral. Without limiting the generality of the foregoing, each Grantor Debtor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor Debtor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any trademark, copyright, or process used or owned by Debtor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do soFor that purpose, each Grantor authorizes GranteeSecured Party may, so far as Debtor can give authority therefor, enter upon any premises on the terms set forth in this Section 7, to enter the premises where which the Collateral may be located or situated in and remove the same therefrom without liability for rent, storage or other costs. Upon request, Debtor shall assemble and make the Collateral available to Secured Party at a place to be designated by Secured Party, which is locatedreasonably convenient to Secured Party.
(b) Upon the occurrence and during the continuance of an Event of Default, to take possession Secured Party may sell all or any part of the Collateral, at public or any part of itprivate sales, and to pay, purchase, contract, at such price or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interestprices as Secured Party may deem commercially reasonable. Grantee shall have the right upon any such public sale or sales and, to To the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity Debtor specifically waives all rights of redemption Grantor hereby releasesand any rights of stay or appraisal which it has or may have under any applicable law in effect from time to time. Each Grantor further agreesAny such public or private sales shall be held at such times and at such place(s) as Secured Party may determine. Secured Party may, at Grantee's requestinstead of exercising its power of sale, proceed to assemble enforce its security interest in the Collateral and make it available to Grantee at places which Grantee shall reasonably select, whether at Grantor's premises by seeking a judgment or elsewhere. Grantee shall apply the net proceeds decree of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee a court of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantorcompetent jurisdiction. To the maximum extent permitted by applicable law, each Grantor Debtor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor Debtor agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Debtor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from GrantorDebtor, Grantor Debtor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each Grantor . Debtor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor Debtor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor Debtor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor In addition to the remedies described above, Debtor shall, upon request of Secured Party, and Secured Party itself may, in the name of Secured Party or Debtor, at any time after an Event of Default notify the account debtor or other obligor on any Product Receivable of Secured Party’s security interest. Secured Party may, in its own name or the name of the Debtor, at any time after the occurrence and during the continuation of an Event of Default hereunder, demand, ▇▇▇ for, collect or receive any money or property payable or receivable on any Product Receivable and settle, release, compromise, adjust, ▇▇▇ upon, foreclose, realize upon or otherwise enforce any Product Receivable as Secured Party may determine.
(d) For the purpose of protecting and preserving the Collateral and Secured Party’s rights under this Agreement, Debtor hereby irrevocably appoints Secured Party, with full power of substitution, as its attorney-in-fact with full power of authority, after the occurrence and during the continuance of any Event of Default, to do any act which Debtor is obligated to do hereunder. Debtor hereby ratifies all that Secured Party shall lawfully do or cause to be done by virtue of this appointment.
(e) Debtor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(df) After payment Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the Proceeds kind in connection with this Security Agreement or any Collateral.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRSTFirst, to Grantee Secured Party in an amount sufficient to pay in full Secured Party’s costs and professionals’ and advisors’ fees and expenses as described in Section 8.3(a) of the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' feesLoan Agreement; SECONDSecond, to Grantee Secured Party in an amount equal to the then unpaid amount of the Obligations (including principal, interest, and the Transaction Fees), in such order and priority as Secured ObligationsParty may choose in its sole discretion; and FINALLYFinally, upon after the full, final, and indefeasible payment in full cash of all of the Secured Obligations, to Grantor any creditor holding a junior lien on the Collateral, or to Debtor or its representatives, in accordance with the UCC representatives or as a court of competent jurisdiction may direct.
(h) Secured Party shall be deemed to have acted reasonably in the custody, preservation and disposition of any of the Collateral if it takes such action as Debtor requests in writing except during an Event of Default, but failure of Secured Party to comply with any such request shall not in itself be deemed a failure to act reasonably, and no failure of Secured Party to do any act not so requested shall be deemed a failure to act reasonably.
Appears in 1 contract
Sources: Security Agreement (Zvue Corp)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee Bank may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the Credit Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsLoan Document, all rights and remedies of a secured party Bank under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeBank, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeBank's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeBank, on the terms set forth in this Section 7, 8 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeBank, appears to be prior or superior to its security interest. Grantee Bank shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeBank's request, to assemble its Collateral and make it available to Grantee the Bank at places which Grantee Bank shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Bank shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Bank of any other amount required by any provision of law, need Grantee Bank account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Bank arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Bank need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee Bank is entitled from Grantor, Grantor also being liable for the reasonable attorney costs of any attorneys employed by Grantee Bank to collect such deficiency.
(b) Each Grantor agrees that in As to any sale of Collateral constituting certificated securities or uncertificated securities, if, at any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized time when Bank shall determine to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order exercise its right to avoid any violation of applicable law (including compliance with such procedures as may restrict sell the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all whole or any part of such Collateral hereunder, such Collateral or the Collateral part thereof to be sold shall not, for any reason whatsoever, be distributed by Grantee in effectively registered under Securities Act of 1933, as amended (as so amended, the following order of priorities: FIRST"Act"), to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representativesBank may, in accordance with the UCC its discretion (subject only to applicable requirements of law), sell such Collateral or as a court of competent jurisdiction may direct.part thereof by private sale in such manner and under such
Appears in 1 contract
Rights and Remedies Upon Default. It shall be an “Event of Default” hereunder if any Event of Default (aas defined in the Securities Purchase Agreement) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after shall occur. If any Event of Default shall have occurred and while such be continuing, the Collateral Agent shall have the following rights and remedies as set forth in this Section 7:
(a) If any Event of Default is shall occur and be continuing, Grantee the Collateral Agent may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Securities Purchase Agreement, the Guaranty, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCCUCC and other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by such Grantor, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Collateral Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent any Grantor has the right to do so, each such Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent or any other Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's ’s premises or elsewhere. Grantee The Collateral Agent and the other Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d7(h) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of law, need Grantee the Collateral Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent or any other Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ notice (which notification shall be deemed given if sent in care of the Company in accordance with paragraph 13H of the Securities Purchase Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee is the Collateral Agent and the other Secured Parties are entitled from such Grantor, such Grantor also being liable for the attorney costs attorneys’ fees and expenses of any attorneys employed by Grantee the Collateral Agent or any other Secured Party to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable Requirements of Law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion: (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent nor any other Secured Party be liable nor accountable to such Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs costs, and reasonable expenses of Granteethe Collateral Agent or any of the other Secured Parties, including, without limitation, including reasonable attorneys' fees’ fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Upon the Collateral Agent’s request, each Grantor agrees that it will promptly execute assignments of its entire right, title and interest in and to each its Patents, Trademarks, Copyrights, and Licenses. Such assignments shall be in form and content which is recordable in the United States Patent and Trademark Office or Copyright Office, or any similar office or agency in any other country or any political subdivision thereof, as applicable, and otherwise reasonably acceptable to the Collateral Agent.
(f) Except as otherwise expressly permitted herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by kind in connection with this Agreement or any Collateral.
(g) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Collateral Agent, on behalf of itself and the other Secured Parties, that in such event the Collateral Agent and the other Secured Parties would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against such Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(h) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee subject to applicable Gaming Laws:
(A) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeSecured Party's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeSecured Party's request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below7(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(bB) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the "ACT"), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(C) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cD) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(dE) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(F) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
(G) In the event that Secured Party exercises a remedy set forth in this Security Agreement with respect to Collateral consisting of gaming devices, cashless wagering systems and associated equipment (as those terms are defined in the Gaming Laws) and a transfer, sale, distribution or other disposition of such Collateral occurs, such transfer, sale, distribution or other disposition may require the separate and prior approval of the Gaming Authorities pursuant to applicable Gaming Laws or the licensing of Secured Party or other transferee.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Grantee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's ’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's ’s request, to assemble its Collateral and make it available to Grantee at places which Grantee shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Sources: Security Agreement (Crdentia Corp)
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of a Purchaser Majority Interest, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Purchase Agreement all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon either Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by either Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's a Secured Party Majority Interest’s request, to assemble its Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at a Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor BJT remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten thirty (1030) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Parties shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their reasonable discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Sources: Security Agreement (Bioject Medical Technologies Inc)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) The Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each the Grantor expressly agrees that in any such event Granteethe Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by a Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent the Grantor has the right to do so, each the Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 6 to enter the premises where the Collateral is locatedlocated during normal business hours, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Grantor hereby releases. Each The Grantor further agrees, at Grantee's the Secured Party’ request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee the Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d6(f) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee the Secured Party of any other amount required by any provision of law, need Grantee account for remit the surplussurplus from the Secured Party’s account, if any, to Grantor. To the maximum extent permitted by applicable law, each the Grantor waives all claims, damages, and demands against Grantee the Secured Party arising out of the repossession, retention or sale of the Collateral. Each The Grantor agrees that Grantee the Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee the Secured Party is entitled from Grantor, such Grantor also being liable for the attorney costs of any attorneys employed by Grantee the Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Party shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Party may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Party shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Secured Party may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) The Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such the Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Secured Party be liable nor accountable to a Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) The Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(de) After payment The Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Party in the following order of priorities: FIRST, to Grantee the Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee the Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Party in an amount equal up to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Sources: Security Agreement (Merriman Curhan Ford Group, Inc.)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after any If an Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) A Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the Notes or the Purchase Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteea Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's a Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) After payment of any debt secured by a Permitted Lien, the The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(A) The Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each the Grantor expressly agrees that in any such event Granteethe Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by a Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeSecured Party's offices or elsewhere at such prices as it they may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent the Grantor has the right to do so, each the Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, SECTION 6 to enter the premises where the Collateral is locatedlocated during normal business hours, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Grantor hereby releases. Each The Grantor further agrees, at Grantee's the Secured Party' request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee the Secured Party shall reasonably select, whether at Grantor's premises or elsewhere. Grantee The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(dSECTION 6(F) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee the Secured Party of any other amount required by any provision of law, need Grantee account for remit the surplussurplus from the Secured Party's account, if any, to Grantor. To the maximum extent permitted by applicable law, each the Grantor waives all claims, damages, and demands against Grantee the Secured Party arising out of the repossession, retention or sale of the Collateral. Each The Grantor agrees that Grantee the Secured Party need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee the Secured Party is entitled from Grantor, such Grantor also being liable for the attorney costs of any attorneys employed by Grantee the Secured Party to collect such deficiency.
(bB) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Party shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the "ACT"), the Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Party may deem necessary or advisable, but subject to the other requirements of this SECTION 6(B), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Party may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this SECTION 6(B), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Party shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Secured Party may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(C) The Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such the Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Secured Party be liable nor accountable to a Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cD) The Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Party, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(dE) After payment The Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(F) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Party in the following order of priorities: FIRST, to Grantee the Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee the Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Secured Party in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee the Secured Party in an amount equal up to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to the Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
(G) The costs of enforcing or pursuing any right or remedy hereunder, including without limitation any repossession, sale, possession and management (including, without limitation, reasonable attorneys' fees), and distribution shall be borne by the Secured Party.
Appears in 1 contract
Sources: Security Agreement (Merriman Curhan Ford Group, Inc.)
Rights and Remedies Upon Default. Beginning on the date which is ten (a10) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, business days after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument Notes, or agreement securing, evidencing or relating to the Secured ObligationsPurchase Agreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Biocept Inc)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Majority Lenders, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Intercreditor Agreement, the Guaranty or the Notes and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by a Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent a Grantor has the right to do so, each Grantor authorizes Granteeany Secured Party, on the terms set forth in this Section 7, 6 to enter the premises where the Collateral is locatedlocated during normal business hours, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteeany Secured Party, appears to be prior or superior to its security interest. Grantee Any Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agrees, at Grantee's the Majority Lenders’ request, to assemble its Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d6(f) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee the Secured Parties of any other amount required by any provision of law, need Grantee account for remit the surplussurplus from the Secured Parties’ account, if any, to GrantorGrantors. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Secured Parties arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee is the Secured Parties are entitled from Grantor, such Grantor also being liable for the attorney costs of any attorneys employed by Grantee the Secured Parties to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Parties shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee is the Secured Parties are hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Secured Parties be liable nor accountable to a Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(de) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lienkind in connection with this Security Agreement or any Collateral.
(f) Subject to the terms of the Intercreditor Agreement, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to each Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
(g) The costs of enforcing or pursuing any right or remedy hereunder, including without limitation any repossession, sale, possession and management (including, without limitation, reasonable attorneys’ fees), and distribution shall be borne Pro Rata by the Secured Parties. Each Secured Party shall reimburse the other Secured Parties, as applicable, for its Pro Rata share of all such costs promptly upon demand.
Appears in 1 contract
Sources: Security Agreement (Igi Inc)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Administrative Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Grantors or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, dividends or distributions on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use any trademark, trade name, trade style, copyright, or process used or owned by any Grantor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Administrative Agent’s offices or elsewhere at such prices as it may may, in its reasonable discretion, deem best, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) exercise, to the extent exclusion of any Grantor has (A) all voting, consent, corporate and other rights pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine in its reasonable discretion), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing. Each Grantor authorizes Granteethe Administrative Agent, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Administrative Agent, appears to be prior or superior to its security interest. Grantee The Administrative Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Grantee's the Administrative Agent’s reasonable request, to assemble its the Collateral and make it available to Grantee the Administrative Agent at places which Grantee the Administrative Agent shall reasonably select, whether at any Grantor's ’s premises or elsewhere. Grantee The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(h), below, with each Grantor remaining jointly and severally Grantors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Administrative Agent account for the surplus, if any, to Grantorthe Grantors. To the maximum extent permitted not prohibited by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Administrative Agent arising out of the repossession, retention or sale of the Collateral, in each case, executed in a commercially reasonable manner, except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Administrative Agent. Each Grantor agrees that Grantee the Administrative Agent need not give more than ten (10) days' ’ prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Administrative Agent and the Lender Parties are entitled, Grantor and Grantors shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Administrative Agent to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Administrative Agent shall determine to exercise its right to sell the whole or any part of such Collateral, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may, in its reasonable discretion, deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Administrative Agent may, in its reasonable discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Administrative Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including, without limitation, a sale at auction) be conducted subject to such restrictions as the Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant to this Security Agreement with respect to the Pledged Collateral and to receive all dividends and other distributions which it may be entitled to receive under this Security Agreement with respect to the Pledged Collateral, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral held by such Grantor and to exercise all other rights, powers, privileges and remedies to which a holder of such Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective automatically and without the necessity of any action (including any transfer of such Pledged Collateral on the record books of the issuer thereof) by any other Person (including the issuer of such Pledged Collateral or any officer or agent thereof), in the case of each of clause (i) and (ii) of this Section 7(c), during each period of time that an Event of Default has occurred and is continuing. Each Grantor acknowledges and agrees that the irrevocable proxy granted to the Administrative Agent by such Grantor pursuant to the preceding sentence with respect to the Pledged Collateral held by such Grantor is coupled with an interest and shall be exercisable by the Administrative Agent during each period of time that an Event of Default has occurred and is continuing, regardless of the length of any such period of time. Each Grantor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Administrative Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Collateral directly to the Administrative Agent in compliance with any such instructions.
(d) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Administrative Agent be liable nor accountable to any Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(ce) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Administrative Agent, including, without limitation, reasonable outside attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(df) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(g) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Administrative Agent, that in such event the Proceeds Administrative Agent would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against the Grantors, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(h) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Administrative Agent as set forth in Section 6.02 of the following order Credit Agreement.
(i) For the purpose of priorities: FIRSTenabling the Administrative Agent to exercise rights and remedies under this Section 7 at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to Grantee in an amount sufficient to pay in full the reasonable costs Administrative Agent a nonexclusive license (exercisable without payment of Grantee in connection with such sale, disposition royalty or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal compensation to the then unpaid Secured Obligations; and FINALLYGrantors during the existence of an Event of Default) to use, upon payment in full license or sublicense any of the Secured ObligationsCollateral now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license reasonable access to Grantor all media in which any of the licensed items may be recorded or its representativesstored and to all computer software and programs used for the compilation or printout thereof, except to the extent that such license may not be granted as a result of an exclusive license arrangement. The use of such license by the Administrative Agent shall be exercisable, at the option of the Administrative Agent, only after the occurrence and during the continuation of an Event of Default; provided that any license or sublicense entered into by the Administrative Agent with a Person other than a Lender Party in accordance with herewith shall be binding upon the UCC or as a court Grantors notwithstanding any subsequent cure of competent jurisdiction may directan Event of Default.
Appears in 1 contract
Sources: Security Agreement (IPC the Hospitalist Company, Inc.)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Majority Lenders, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Notes and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each the Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by a Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent the Grantor has the right to do so, each the Grantor authorizes Granteeany Secured Party, on the terms set forth in this Section 7, 6 to enter the premises where the Collateral is locatedlocated during normal business hours, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteeany Secured Party, appears to be prior or superior to its security interest. Grantee Any Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption the Grantor hereby releases. Each The Grantor further agrees, at Grantee's the Majority Lenders’ request, to assemble its Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d6(f) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee the Secured Parties of any other amount required by any provision of law, need Grantee account for remit the surplussurplus from the Secured Parties’ account, if any, to Grantor. To the maximum extent permitted by applicable law, each the Grantor waives all claims, damages, and demands against Grantee the Secured Parties arising out of the repossession, retention or sale of the Collateral. Each The Grantor agrees that Grantee the Secured Parties need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee is the Secured Parties are entitled from Grantor, such Grantor also being liable for the attorney costs of any attorneys employed by Grantee the Secured Parties to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Parties shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) The Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee is the Secured Parties are hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such the Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Secured Parties be liable nor accountable to a Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) The Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(de) After payment The Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Sources: Security Agreement (Merriman Curhan Ford Group, Inc.)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Administrative Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Grantors or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, dividends or distributions on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use any trademark, trade name, trade style, copyright, or process used or owned by any Grantor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Administrative Agent’s offices or elsewhere at on such prices commercially reasonable terms and in such commercially reasonable manner as it the Administrative Agent may deem bestdetermine, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) after or concurrently with the extent Grantor has giving of written notice to the Borrower of its intent to exercise its rights under this Section 7(a), exercise (A) all voting, consent, corporate and other rights pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing. Each Grantor authorizes Granteethe Administrative Agent, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Administrative Agent, appears to be prior or superior to its security interest. Grantee The Administrative Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Grantee's the Administrative Agent’s request, to assemble its the Collateral and make it available to Grantee the Administrative Agent at places which Grantee the Administrative Agent shall reasonably select, whether at any Grantor's ’s premises or elsewhere. Grantee The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally Grantors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Administrative Agent of any other amount required by any provision of law, including Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Administrative Agent account for the surplus, if any, to Grantorthe Grantors. To the maximum extent permitted not prohibited by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Administrative Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Administrative Agent. Each Grantor agrees that Grantee the Administrative Agent need not give more than ten (10) days' ’ prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Administrative Agent and the Lenders are entitled, Grantor and Grantors shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Administrative Agent to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Administrative Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Administrative Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Administrative Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws. In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, each Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall terminate upon the earlier of the payment in full of the Secured Obligations or the cure of the Event of Default. During the occurrence and continuation of any Event of Default, each Grantor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Administrative Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Collateral directly to the Administrative Agent.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Administrative Agent be liable nor accountable to any Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Administrative Agent, including, without limitation, reasonable attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(f) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Administrative Agent, that in such event the Proceeds Administrative Agent and would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against the Grantors, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Administrative Agent as set forth in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directCredit Agreement.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence and -------------------------------- during the continuation of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default and the delivery to the Borrower of an Event Notice, the Administrative Agent (on behalf of, and for the benefit of each Secured Party) shall become entitled to seek satisfaction from the Collateral on the third Trading Day following the date of delivery of the Event Notice and the Administrative Agent shall have occurred and while such Event the right to exercise all of Default is continuingthe remedies conferred hereunder, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement the Notes, and the Note and under any other instrument or agreement securing, evidencing or relating to Administrative Agent shall have all the Secured Obligations, all rights and remedies of a secured party creditor under the UCCCivil Code. Without limiting limitation, the generality Administrative Agent shall have the following rights and powers:
(a) The Administrative Agent shall have the right to seek satisfaction of all of the foregoing, each Grantor expressly agrees that in any such event Grantee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived Obligations owing to the maximum extent permitted by Secured Parties from the UCC and other applicable law)Collateral via court execution, may as provided under Section 255 (i1) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the CollateralCivil Code.
(b) The Administrative Agent shall have the right to assign, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said all or any part of the Collateral (or contract designate a person who officially deals with granting loans against security and/or organizing public sales to do so)) as provided under Sections 257 and 258 of the Civil Code, or any part thereof, in one or more parcels at public or private sale or salesotherwise, at for a purchase price not less than the Sale Value, in U.S. Dollars (or an equivalent amount in any exchange or broker's board or at any of Grantee's offices or elsewhere at such prices as it may deem bestother currency selected by the Administrative Agent), for cash or on credit or for future delivery without assumption delivery, in such portion or portions and at such time or times within a maximum period of any credit risk. To 15 months from the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession date of the Collateral, or any part of itEvent Notice giving rise thereto, and to pay, purchase, contract, at such place or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's request, to assemble its Collateral and make it available to Grantee at places which Grantee shall reasonably select, whether at Grantor's premises or elsewhere. Grantee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such applicationplaces, and only after so paying over upon such net proceeds terms and after conditions as the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale Administrative Agent may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a deem commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold and as are in compliance with any applicable laws. Upon each such limitation sale, assignment or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses other transfer of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted LienCollateral, the Proceeds of Administrative Agent and/or any sale, disposition or other realization upon Secured Party may purchase all or any part of the Collateral being sold, free from and discharged of all trusts, claims, right of redemption and equities of the Chargor, which are hereby waived and released.
(c) The Administrative Agent shall have the right to seek satisfaction from the Collateral in such other manner as shall be distributed permitted by Grantee the applicable laws at time of exercising such right.
(d) The Administrative Agent may, in order to implement the following order of priorities: FIRSTassignment, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition sale or other realizationdisposition of any of the Collateral pursuant to this Section, including all fees, costs, expenses, liabilities execute and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal deliver (pursuant to the then unpaid Secured Obligations; and FINALLY, upon payment authority provided for in full Section 13 on behalf of the Chargor one or more instruments of assignment of the Collateral in form suitable for filing, recording or registration in any jurisdictions as the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction Parties may directdetermine advisable.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note Notes and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Grantee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Grantee's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's request, to assemble its Collateral and make it available to Grantee at places which Grantee shall reasonably select, whether at Grantor's premises or elsewhere. Grantee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Crdentia Corp)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Collateral Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and the Note Agreement, any other Loan Documents and under any other instrument Pledged Instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under any applicable Requirement of Law, including the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethat, during the continuance of an Event of Default, the Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other any applicable lawRequirement of Law), may shall have the right to collect the Proceeds from all Collateral (including dividends on pledged Collateral) and may: (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, (ii) upon five (5) Business Days' prior notice to the Grantors, license any of the Patents, Trademarks or Copyrights, throughout the world for such term or terms, on such conditions, and in connection with such manner, as the liquidation Collateral Agent shall in its sole discretion determine, whether general, special or otherwise, and on an exclusive or nonexclusive basis, (iii) enforce (and, upon notice to the Grantors, shall have the exclusive right to enforce) against any licensee or sublicensee all rights and remedies of the CollateralGrantors in, to and under any one or more license agreements with respect to the Collateral (without assuming any obligations or liability thereunder), and take or refrain from taking any action under any thereof, (iiiv) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract Contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Granteethe Administrative Agent's or Collateral Agent's offices or elsewhere at such 20 prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To , and (v) exercise (A) all voting, consent, corporate and other rights pertaining to the extent pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant Grantor has of pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other structure of any issuer of pledged Collateral, the right to deposit and deliver any and all of the pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing.
(b) Each Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 7, to (i) enter the premises where the Collateral is located, to (ii) take possession of the Collateral, or any part of it, and to (iii) pay, purchase, contract, contest or compromise any encumbrance, charge, or lien Lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by lawapplicable any Requirement of Law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption such Grantor hereby releases. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Granteethe Collateral Agent's request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted not prohibited by any applicable lawRequirement of Law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of the Collateral Agent as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' prior notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(bc) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933 (the "Act"), the Collateral Agent may, in its discretion (subject only to applicable requirements of any applicable Requirement of Law), sell such Collateral or part thereof by private 21 sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(c), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act, (ii) approach and negotiate with a single possible purchaser to effect such sale, and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(c), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to any Requirement of Law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other Requirement of Law affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(d) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of any applicable law Requirement of Law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the dividend or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authorityGovernmental Authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(ce) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable including attorneys' feesfees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(df) After payment Each Grantor hereby waives presentment, protest or any notice or demand not provided for herein (to the maximum extent not prohibited by any applicable Requirement of Law) of any debt secured by a Permitted Lien, the Proceeds kind in connection with this Security Agreement or any Collateral.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be be, subject to the terms of the Intercreditor Agreement, distributed by Grantee the Collateral Agent or the Administrative Agent in the following order of priorities: FIRST, to Grantee priority set forth in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full Section 2.13 of the Secured ObligationsCredit Agreement. 22 SECTION 8. Limitation on the Collateral Agent's Duty in Respect of Collateral. The Collateral Agent shall be deemed to have acted reasonably in the custody, to Grantor or its representatives, in accordance preservation and disposition of any of the Collateral if it complies with the UCC or as obligations of a court secured party under Section 9-207 of competent jurisdiction may directthe UCC.
Appears in 1 contract
Sources: Security Agreement
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee Lenders may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note MNB Merchant Agreement, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeLenders, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Grantee's Lenders' offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee Lenders shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Lenders' request, to assemble its the Collateral and make it available to Grantee Lenders at places which Grantee Lenders shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Lenders shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d7.1(d) belowhereof, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Lenders of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need Grantee Lenders account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Lenders arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Lenders. Each Grantor agrees that Grantee Lenders need not give more than ten (10) days' notice (which notification shall be deemed given if given in accordance with Section 9.3 of the Reimbursement Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from GrantorLenders are entitled, Grantor also being liable for the attorney costs reasonable fees of any attorneys employed by Grantee Lenders to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee Bank may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the Credit Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsLoan Document, all rights and remedies of a secured party Bank under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeBank, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeBank's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeBank, on the terms set forth in this Section 7, 8 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeBank, appears to be prior or superior to its security interest. Grantee Bank shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeBank's request, to assemble its Collateral and make it available to Grantee the Bank at places which Grantee Bank shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Bank shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Bank of any other amount required by any provision of law, need Grantee Bank account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Bank arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Bank need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee Bank is entitled from Grantor, Grantor also being liable for the reasonable attorney costs of any attorneys employed by Grantee Bank to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Bank shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended, the "Act"), Bank may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Bank may deem necessary or advisable, but subject to the other requirements of this Section 8(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Bank may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Bank shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Bank may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Bank is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Bank be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeBank, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Bank in the following order of priorities: FIRSTFirst, to Grantee Bank in an amount sufficient to pay in full the reasonable costs of Grantee Bank in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Bank in connection therewith, including, without limitation, reasonable attorneys' fees; SECONDSecond, to Grantee Bank in an amount equal to the then unpaid Secured Obligations; and FINALLYFinally, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights provisions of Senior Lender under Section 7, beginning on the Loan Documents and Section 3 hereof, date which is ten (10) business days after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsLoan Agreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in As to any sale of Collateral constituting certificated securities or uncertificated securities, if, at any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized time when Secured Party shall determine to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order exercise its right to avoid any violation of applicable law (including compliance with such procedures as may restrict sell the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral shall be distributed or part thereof by Grantee private sale in the following order of priorities: FIRSTsuch manner and under such circumstances as Secured Party may deem necessary or advisable, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal but
13. subject to the then unpaid Secured Obligations; other requirements of this Section 8(b), and FINALLY, upon payment in full shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured ObligationsParty may, to Grantor or in its representativessole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the UCC purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a court sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of competent jurisdiction may directcreditors’ rights and the Act and all applicable state securities laws.
Appears in 1 contract
Sources: Loan Agreement (Biocept Inc)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Administrative Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Grantors or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, dividends or distributions on Pledged Collateral) and may to the extent permitted by applicable law (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use any trademark, trade name, trade style, copyright, or process used or owned by any Grantor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Granteethe Administrative Agent's offices or elsewhere at on such prices commercially reasonable terms and in such commercially reasonable manner as it the Administrative Agent may deem bestdetermine, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) after or concurrently with the extent Grantor has giving of written notice to the Borrower of its intent to exercise its rights under this Section 7(a), exercise (A) all voting, consent, corporate and other rights pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing. Each Grantor authorizes Granteethe Administrative Agent, on the terms set forth in this Section 7, after the occurrence and during the continuation of any Event of Default, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Administrative Agent, appears to be prior or superior to its security interest. Grantee The Administrative Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Granteethe Administrative Agent's requestrequest after the occurrence and during the continuation of any Event of Default, to assemble its the Collateral and make it available to Grantee the Administrative Agent at places which Grantee the Administrative Agent shall reasonably select, whether at any Grantor's premises or elsewhere. Grantee The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally Grantors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Administrative Agent of any other amount required by any provision of law, including Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Administrative Agent account for the surplus, if any, to Grantorthe Grantors. To the maximum extent permitted not prohibited by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Administrative Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Administrative Agent. Each Grantor agrees that Grantee the Administrative Agent need not give more than ten (10) days' prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Administrative Agent and the Lenders are entitled, Grantor and Grantors shall also being be liable for the attorney attorneys' fees or costs of any attorneys employed by Grantee the Administrative Agent to collect such deficiency.
(b) As to any Collateral constituting Pledged Equity, if, at any time when the Administrative Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder after the occurrence and during the continuation of any Event of Default, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Administrative Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Administrative Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws. In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, each Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall terminate upon the earlier of the payment in full of the Secured Obligations (other than contingent indemnity obligations for which no claim has been made that by their own terms survive termination of the Credit Agreement) or the cure of the Event of Default. Each Grantor acknowledges and agrees that the irrevocable proxy granted to the Administrative Agent by such Grantor pursuant to the preceding sentence with respect to the Pledged Collateral held by such Grantor is coupled with an interest and shall be exercisable by the Administrative Agent during each period of time that an Event of Default has occurred and is continuing, regardless of the length of any such period of time. During the occurrence and continuation of any Event of Default, each Grantor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Administrative Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Collateral directly to the Administrative Agent.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Administrative Agent be liable nor accountable to any Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Administrative Agent, including, without limitation, reasonable attorneys' feesfees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(f) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Administrative Agent, that in such event the Proceeds Administrative Agent and would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against the Grantors, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Administrative Agent as set forth in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directCredit Agreement.
Appears in 1 contract
Rights and Remedies Upon Default. Beginning on the date which is one (a1) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, business day after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) The Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under or any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Loan Document all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Secured Party’s request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee the Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Party need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the reasonable attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Party may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Secured Party may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Party in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Sources: Security Agreement (Cardica Inc)
Rights and Remedies Upon Default. Beginning on the date which is ten (a10) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, business days after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Majority Lenders, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it them under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Notes all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Majority ▇▇▇▇▇▇▇’ request, to assemble its the Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in As to any sale of Collateral constituting certificated securities or uncertificated securities, if, at any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized time when Secured Parties shall determine to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order exercise their right to avoid any violation of applicable law (including compliance with such procedures as may restrict sell the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral shall be distributed or part thereof by Grantee private sale in such manner and under such circumstances as the following order of priorities: FIRSTSecured Parties may deem necessary or advisable, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal but subject to the then unpaid Secured Obligations; other requirements of this Section 7(b), and FINALLY, upon payment in full shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured ObligationsParties may, to Grantor or its representativesin their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the UCC purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Secured Parties
11. shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a court sale at auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of competent jurisdiction may directcreditors’ rights and the Act and all applicable state securities laws.
Appears in 1 contract
Sources: Security Agreement (IronNet, Inc.)
Rights and Remedies Upon Default. Beginning on the date which is ten (a10) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, business days after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Secured Party may exercise, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsAgreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon upon
4. Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, Collateral and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee that Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 3(d), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights provisions of Senior Lender under Section 7, beginning on the Loan Documents and Section 3 hereof, date which is ten (10) business days after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument Notes, or agreement securing, evidencing or relating to the Secured ObligationsPurchase Agreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale sale
13. or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after any If an Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Lender may exercise in addition to all other rights and remedies granted to it under in this Security Agreement and the Note and under in any other instrument or agreement securing, evidencing or relating to the Secured ObligationsLoan Document, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor the Company expressly agrees that in any such event Granteeon or after the Acceleration Date, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Company or any other person Person (all and each of which demands, advertisements and and/or notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaimforthwith enter upon the premises of the Company where any Collateral is located through self-help, take possessionwithout judicial process, recover, store, maintain, finish, repair, prepare without first obtaining a final judgment or giving the Company notice and opportunity for sale a hearing on the Lender's claim or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the CollateralLender's action, and in connection with the liquidation of the Collateralwithout paying rent, and (ii) forthwith collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and and/or may forthwith sell, lease, assign, give an option or options to purchase purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Granteethe Lender's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee The Lender shall have the right upon any such public sale or sales sales, and, to the extent permitted by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor the Company hereby releases. Each Grantor Such sales may be adjourned and continued from time to time with or without notice. The Lender shall have the right to conduct such sales on the Company's premises or elsewhere and shall have the right to use the Company's premises without charge for such sales for such time or times as the Lender deems necessary or advisable. The Company further agrees, at Granteethe Lender's requestrequest on or after the Acceleration Date, to assemble its the Collateral and make it available to Grantee the Lender at places which Grantee the Lender shall reasonably select, whether at Grantorthe Company's premises or elsewhere. Grantee Until the Lender is able to effect a sale, lease, or other disposition of Collateral hereunder, the Lender shall have the right to use or operate the Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Lender. The Lender shall have no obligation to the Company to maintain or preserve the rights of the Company as against third parties with respect to the Collateral while the Collateral is in the possession of the Lender. The Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Lender's remedies with respect to such appointment without prior notice or hearing. The Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale sale, as provided in Section 7(d10(d) belowhereof, with each Grantor the Company remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Lender of any other amount required by any provision of law, including Section 9-504(1)(c) of the UCC, need Grantee the Lender account for the surplus, if any, to Grantorthe Company. To the maximum extent permitted by applicable law, each Grantor the Company waives all claims, damages, and demands against Grantee the Lender arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or wilful misconduct of the Lender. Each Grantor The Company agrees that Grantee the Lender need not give more than ten (10) days' notice (which notification shall be deemed given when given in the manner provided in Section 13 hereof) of the time and place of any public sale or of the time after which a private sale may take place place, and that such notice is reasonable notification of such matters. Grantor The Company shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from GrantorObligations, Grantor the Company also being liable for the attorney costs reasonable fees and expenses of any attorneys employed by Grantee the Lender to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor The Company also agrees to pay all reasonable fees, costs and expenses of Granteethe Lender, including, without limitation, the expenses and reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) The Company hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Agreement or any Collateral.
(d) After payment of any debt secured by a Permitted Lien, the The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Lender in the following order of priorities: FIRST:
(i) first, to Grantee the Lender in an amount sufficient to pay in full the reasonable costs expenses of Grantee the Lender in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Lender in connection therewith, including, without limitation, reasonable attorneys' fees; SECONDattorney's fees actually incurred by the Lender;
(ii) second, to Grantee the Lender in an amount equal to the then unpaid Secured principal of and accrued interest and prepayment premiums, if any, on the Obligations;
(iii) third, to the Lender, in an amount equal to any other Obligations which are then unpaid; and FINALLYand
(iv) finally, upon payment in full of all of the Secured Obligations, to Grantor pay to the Company, or its representatives, in accordance with the UCC representatives or as a court of competent jurisdiction otherwise may direct, any surplus then remaining from such Proceeds.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Administrative Agent may exercise (in accordance with applicable Gaming Laws), in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor Debtor expressly agrees that in any such event Granteethe Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Debtors or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, dividends or distributions on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use any trademark, trade name, trade style, copyright, or process used or owned by any Debtor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Administrative Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) to the extent Grantor has exclusion of any Debtor, exercise (A) all voting, consent, corporate and other rights pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Debtor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each Grantor so or delay in so doing. Each Debtor authorizes Granteethe Administrative Agent, on the terms set forth in this Section 7, after the occurrence and during the continuance of an Event of Default, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Administrative Agent, appears to be prior or superior to its security interest. Grantee The Administrative Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor each Debtor hereby releases. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor Debtor further agrees, at Grantee's the Administrative Agent’s request, to assemble its the Collateral and make it available to Grantee the Administrative Agent at places which Grantee the Administrative Agent shall reasonably select, whether at Grantor's any Debtor’s premises or elsewhere. Grantee The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(h), below, with each Grantor remaining jointly and severally Debtors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Administrative Agent account for the surplus, if any, to Grantorthe Debtors. To the maximum extent permitted not prohibited by applicable law, each Grantor Debtor waives all claims, damages, and demands against Grantee the Administrative Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Administrative Agent. Each Grantor Debtor agrees that Grantee the Administrative Agent need not give more than ten (10) days' ’ prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Debtors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Administrative Agent and the Lender Parties are entitled, Grantor and Debtors shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Administrative Agent to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Administrative Agent shall determine to exercise its right to sell the whole or any part of such Collateral, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Administrative Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Administrative Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including, without limitation, a sale at auction) be conducted subject to such restrictions as the Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant to this Security Agreement with respect to the Pledged Collateral and to receive all dividends and other distributions which it may be entitled to receive under this Security Agreement with respect to the Pledged Collateral, (i) each Debtor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Debtor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral held by such Debtor and to exercise all other rights, powers, privileges and remedies to which a holder of such Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of such Pledged Collateral on the record books of the issuer thereof) by any other Person (including the issuer of such Pledged Collateral or any officer or agent thereof) during each period of time that an Event of Default has occurred and is continuing. Each Grantor Debtor acknowledges and agrees that the irrevocable proxy granted to the Administrative Agent by such Debtor pursuant to the preceding sentence with respect to the Pledged Collateral held by such Debtor is coupled with an interest and shall be exercisable by the Administrative Agent during each period of time that an Event of Default has occurred and is continuing, regardless of the length of any such period of time. Each Debtor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Debtor to (i) comply with any instruction received by it from the Administrative Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Collateral directly to the Administrative Agent in compliance with any such instructions.
(d) Each Debtor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor each Debtor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Administrative Agent be liable nor accountable to Grantor any Debtor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(ce) Grantor Each Debtor also agrees to pay all reasonable fees, costs and expenses of Granteethe Administrative Agent, including, without limitation, reasonable attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(df) After payment Except to the extent otherwise expressly provided in the Credit Documents, each Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(g) Each Debtor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Administrative Agent, that in such event the Proceeds Administrative Agent and would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against the Debtors, and each Debtor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(h) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Administrative Agent as set forth in Section 6.02 of the following order Credit Agreement.
(i) For the purpose of priorities: FIRSTenabling the Administrative Agent to exercise rights and remedies under this Section 7 at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Debtor hereby grants to Grantee in an amount sufficient to pay in full the reasonable costs Administrative Agent a nonexclusive license (exercisable without payment of Grantee in connection with such sale, disposition royalty or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal compensation to the then unpaid Secured Obligations; and FINALLYDebtors during the existence of an Event of Default) to use, upon payment in full license or sublicense any of the Secured ObligationsCollateral now owned or hereafter acquired by such Debtor, and wherever the same may be located, and including in such license reasonable access to Grantor all media in which any of the licensed items may be recorded or its representativesstored and to all computer software and programs used for the compilation or printout thereof, except to the extent that such license may not be granted as a result of an exclusive license arrangement. The use of such license by the Administrative Agent shall be exercised, at the option of the Administrative Agent, after the occurrence and during the continuation of an Event of Default; provided that any license or sublicense entered into by the Administrative Agent with a Person other than a Lender Party in accordance with herewith shall be binding upon the UCC or as a court Debtors notwithstanding any subsequent cure of competent jurisdiction may directan Event of Default.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Majority Holders, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it them under this Security Agreement, the IP Security Agreement, the Notes, or the Purchase Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it they may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Majority Holders’ request, to assemble its the Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Parties shall determine to exercise their right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its their rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) Upon the written consent of the Required Lenders, Grantee the Secured Parties may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Purchase Agreement all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Parties, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Required Lender’s request, to assemble its Collateral and make it available to Grantee the Secured Parties at places which Grantee the Secured Parties shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Parties need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Parties shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Secured Parties may, in their discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Secured Parties may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Secured Parties may, in their discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Secured Parties shall not be required to effect such registration or cause the same to be effected but may, in their discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Secured Parties may, in their discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Secured Parties in the following order of priorities: FIRST, to Grantee each Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee any Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee the Secured Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Secured Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Sources: Security Agreement (Neorx Corp)
Rights and Remedies Upon Default. It shall be an “Event of Default” hereunder if any Event of Default (aas defined in the Note Agreement or the Guaranty Agreement) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after shall occur. If any Event of Default shall have occurred and while such Event of Default is be continuing, Grantee the Collateral Agent shall have the following rights and remedies as set forth in this Section 8:
(a) The Collateral Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Agreement, the Guaranty Agreement, the Subsidiary Guaranty Agreement, the other Transaction Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCCUCC and other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteeevent, the Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by such Grantor, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Collateral Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent any Grantor has the right to do so, each such Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 78, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent or any Secured Party shall have the right right, upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's ’s premises or elsewhere. Grantee The Collateral Agent and the Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 8(h), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of law, need Grantee the Collateral Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent or any Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ notice (which notification shall be deemed given if sent in accordance with Section 12(a)) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee is the Collateral Agent and the Secured Parties are entitled from such Grantor, such Grantor also being liable for the attorney costs attorneys’ fees and expenses of any attorneys employed by Grantee the Collateral Agent or any Secured Party to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable Requirements of Law), sell such Collateral or any part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem desirable, but subject to the other requirements of this Section 8(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event, the Collateral Agent may, in its sole discretion: (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem desirable in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent nor any Secured Party be liable nor accountable to such Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs costs, and reasonable expenses of Granteethe Collateral Agent or any of the Secured Parties, including, without limitation, including reasonable attorneys' fees’ fees and expenses, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Upon the Collateral Agent’s request, each Grantor agrees that it will promptly execute assignments of its entire right, title and interest in and to each its Patents, Trademarks, Copyrights, and Licenses. Such assignments shall be in form and content which is recordable in the United States Patent and Trademark Office or Copyright Office, or any similar office or agency in any other country or any political subdivision thereof, as applicable, and otherwise reasonably acceptable to the Collateral Agent.
(f) Except as otherwise expressly permitted herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by kind in connection with this Agreement or any Collateral.
(g) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 8 will cause irreparable injury to the Collateral Agent, on behalf of itself and the Secured Parties, that in such event the Collateral Agent and the Secured Parties would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 8 shall be specifically enforceable against such Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(h) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRSTFirst, to Grantee the Collateral Agent in an amount sufficient to pay in full the reasonable costs payable hereunder of Grantee the Collateral Agent in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Collateral Agent in connection therewith, including, without limitation, including reasonable attorneys' fees’ fees and expenses; SECONDSecond, to Grantee the Secured Parties in an amount sufficient to pay in full the reasonable costs of the Secured Parties in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by the Secured Parties in connection therewith, including reasonable attorneys’ fees and expenses; Third, to the Secured Parties in an amount equal to the then unpaid principal of and accrued interest, Yield-Maintenance Amount, non-usage and all other fees and charges payable on the Secured Obligations; Fourth, to the Secured Parties in an amount equal to any other Secured Obligations under any of the Transaction Documents which are then unpaid; and FINALLYFinally, upon payment in full of all of the Secured Obligations, to Grantor the Grantors or its representatives, in accordance with the UCC their representatives according to their interests or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Collateral Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable Governmental Rules, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethat, during the continuance of an Event of Default, the Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable lawGovernmental Rules), shall have the right to collect the Proceeds from all Collateral (including, without limitation, Distributions on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use, without charge, any trademark, trade name, trade style, copyright, or process used or owned by such Grantor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Administrative Agent’s or Collateral Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) exercise (A) all voting, consent, corporate and other rights pertaining to the extent Grantor has Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other structure of any issuer of Pledged Collateral, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing. Each Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, contest or compromise any encumbrance, charge, or lien Lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by lawapplicable Governmental Rules, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption such Grantor hereby releases. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at such Grantor's ’s premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally the Grantors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of lawapplicable Governmental Rules, including Section 9-608(a)(1)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Collateral Agent account for the surplus, if any, to a Grantor. To the maximum extent permitted not prohibited by applicable lawGovernmental Rules, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of the Collateral Agent as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor The Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Collateral Agent and the Lenders are entitled, Grantor and the Grantors shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Collateral Agent to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable requirements of applicable Governmental Rules), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of Governmental Rules), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other Governmental Rules affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws. In order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all Distributions which it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all such proxies, Distribution payment orders and other instruments as the Collateral Agent may from time to time reasonably request (each effective only if an Event of Default has occurred and is continuing) and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Collateral Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other Person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall terminate upon the earlier of the payment in full of the Secured Obligations or the cure of the Event of Default. Each Grantor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Collateral Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any Distributions or other payments with respect to the Pledged Collateral directly to the Collateral Agent if an Event of Default has occurred and is continuing and the relevant Grantor has received written notice of the Collateral Agent’s election to collect any such payments.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law Governmental Rules (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authorityGovernmental Authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Each Grantor hereby waives presentment, protest or any notice or demand not provided for herein (to the maximum extent not prohibited by applicable Governmental Rules) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(f) Each Grantor agrees that a Permitted Lienmaterial uncured breach of any covenants contained in this Section 7 will cause irreparable injury to the Collateral Agent, the Proceeds Administrative Agent and the Lenders, that in such event the Collateral Agent, the Administrative Agent and the Lenders would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against a Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent or the Administrative Agent in the following order of priorities: FIRST, to Grantee priority set forth in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full Section 6.02(b) of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directCredit Agreement.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeSecured Party's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeSecured Party's request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below7(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the "Act"), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing, Grantee :
(a) Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and or the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its the Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below7(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.and
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement, the Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeSecured Party's offices or elsewhere at such prices as it it, in its reasonable discretion, may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at GranteeSecured Party's request, to assemble its the Collateral and make it available to Grantee Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) Subsection 8(d), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, including Section 9504(1)(c) of the UCC, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Secured Party. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantorentitled, Grantor also being liable for the attorney costs fees and expenses of any attorneys employed by Grantee Secured Party to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable fees and expenses of attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) After payment of any debt secured by a Permitted Lien, the The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, custody, preservation, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' attorney fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid amount of the Secured Obligations; and FINALLY, upon payment in full of all of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC representatives or as a court of competent jurisdiction may direct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) The Collateral Agent, Grantee on behalf of the Secured Parties, may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsPurchase Agreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor remaining jointly and severally liable 10 for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Collateral Agent may, in its discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor ▇▇▇▇▇▇▇ also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee may exercise the Collateral Agent may, and in accordance with the written direction of the Directing Secured Parties shall, exercise, in addition to all other rights and remedies granted to it under this Security Pledge Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor the Pledgor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Pledgor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, Distributions on Pledged Securities) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate appropriate, foreclose upon and realize upon the Collateral, or any part thereof, (ii) transfer to or to register on the books of the Issuer (or of any other Person maintaining records with respect to the Collateral) in the name of the Collateral Agent or any of its nominees any or all of the Collateral, (iii) exchange certificates or instruments representing or evidencing Collateral for certificates or instruments of smaller or larger denominations, and (iv) to the exclusion of the Pledgor, exercise (A) all voting, consent, corporate and other rights pertaining to the Pledged Securities at any meeting of shareholders, partners, members or other equity holders, as the case may forthwith sellbe, leaseof the Issuer or otherwise and (B) any and all rights of conversion, assignexchange and subscription and any other rights, give an option privileges or options pertaining to purchase or sell or otherwise dispose of and deliver said Collateral the Pledged Securities as if it were the absolute owner thereof (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Grantee's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has including the right to exchange at its discretion any and all of the Pledged Securities upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of the Issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Securities with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to the Pledgor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each Grantor so or delay in so doing. The Pledgor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 76, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor the Pledgor hereby releases. Each Grantor further agrees, at Grantee's request, The Collateral Agent may sell the Collateral without giving any warranties as to assemble its the Collateral and make it available may specifically disclaim any warranties of title, which procedures shall not be considered to Grantee at places which Grantee shall reasonably select, whether at Grantor's premises or elsewhereadversely affect the commercial reasonableness of any sale of the Collateral. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(j), below, with each Grantor remaining jointly and severally the Pledgor shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of law, including, without limitation, Section 9‑608(a)(1)(c) of the UCC (or any other then applicable provision of the UCC), need Grantee the Collateral Agent account for the surplus, if any, to Grantorthe Pledgor. To the maximum extent permitted not prohibited by applicable law, each Grantor the Pledgor waives all claims, damages, and demands against Grantee the Collateral Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Collateral Agent. Each Grantor The Pledgor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ prior written notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor The Pledgor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorthe Collateral Agent or Secured Parties are entitled, Grantor and the Pledgor shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Collateral Agent to collect such deficiency.
(b) As to any Collateral, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including, without limitation, a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) The Collateral Agent shall incur no liability as a result of the sale, lease or other disposition of all or any part of the Collateral at any private sale conducted in a commercially reasonable manner, which shall be conducted at the direction of the Directing Secured Parties. Each Grantor party hereto agrees that any private sales may be at prices and on terms less favorable to the Collateral Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that neither the Collateral Agent nor the Secured Parties shall have any obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register it for public sale. The purchase price received by the Collateral Agent on behalf of the Secured Parties in respect of any sale of Collateral shall be deemed conclusive and binding on the parties hereto. Each party hereto hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the obligations owed under the Transaction Documents, even if the Collateral Agent accepts the first offer received and does not offer the Collateral to more than one offeree.
(d) At the direction of the Directing Secured Parties, the Collateral Agent may retain the services of a financial advisor in connection with any such sale under this Agreement, and the Collateral Agent may retain such a financial advisor prior to an Event of Default if it shall have received the prior written consent of the Directing Secured Parties (such consent not to be unreasonably withheld, delayed or conditioned). The fees and expenses of such financial advisor shall be paid by the Pledgor and shall be deemed part of the Secured Obligations.
(e) In order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant to this Pledge Agreement with respect to the Collateral and to receive all Distributions which it may be entitled to receive under this Pledge Agreement with respect to the Collateral, from and after the occurrence and during the continuance of an Event of Default, (i) the Pledgor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all such proxies, dividend payment orders, Distribution payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, the Pledgor hereby grants to the Collateral Agent an irrevocable proxy to vote all or any part of the Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of such Collateral would be entitled (including giving or withholding written consents of shareholders, partners, members or other equity holders, as the case may be, calling special meetings of shareholders, partners, members or other equity holders, as the case may be, and voting at such meetings), which proxy shall be effective automatically and without the necessity of any action (including any transfer of such Collateral on the record books of the Issuer) by any other Person (including the Issuer or any officer or agent thereof) during each period of time that an Event of Default has occurred and is continuing. The Pledgor acknowledges and agrees that the irrevocable proxy granted to the Collateral Agent by the Pledgor pursuant to the preceding sentence with respect to the Collateral is coupled with an interest and shall be exercisable by the Collateral Agent during each period of time that an Event of Default has occurred and is continuing, regardless of the length of any such period of time. The Pledgor hereby expressly authorizes and instructs the Issuer to (i) comply with any instruction received by it from the Collateral Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Pledge Agreement, without any other or further instructions from the Pledgor, and the Pledgor agrees that the Issuer shall be fully protected in so complying and (ii) pay any Distributions or other payments with respect to the Collateral directly to the Collateral Agent in compliance with any such instructions.
(f) The Pledgor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authorityentity, and such Grantor the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent be liable nor accountable to Grantor the Pledgor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cg) Grantor also The Pledgor agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder. This Section 6(g) shall survive the termination or assignment of this Pledge Agreement and the removal or resignation of the Collateral Agent.
(dh) After payment The Pledgor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Pledge Agreement or any Collateral in accordance with the A&R LPA.
(i) The Pledgor agrees that a Permitted Lienbreach of any covenants contained in this Section 6 will cause irreparable injury to the Collateral Agent and the Secured Parties, that in such event the Proceeds Collateral Agent and the Secured Parties would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 6 shall be specifically enforceable against the 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 the Secured Obligations are not then due and payable.
(j) The Secured Parties shall cause the proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall to be distributed by Grantee applied to the Secured Obligations in the following order prescribed for such Secured Obligations in the A&R LPA.
(k) Notwithstanding the foregoing in this Section 6 but without limiting the right of priorities: FIRSTset off or any other rights of the Purchaser Indemnified Parties, to Grantee the extent that the Pledgor in an amount sufficient good faith disputes its obligations with respect to pay in full any Indemnified Claim, the reasonable costs Purchaser Indemnified Parties shall not foreclose or cause the foreclosure on the Class B Partnership Units pledged under this Pledge Agreement as a result of Grantee in connection with such sale, disposition Indemnified Claim until such Indemnified Claim has been settled or other realization, including all fees, costs, expenses, liabilities adjudicated by a final and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full non-appealable judgment of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directjurisdiction; provided however, that while the dispute, negotiations, settlement or adjudicating proceedings are undergoing, the Pledgor shall reimburse the relevant Purchaser Indemnified Parties (and the Collateral Agent (if applicable)) for reasonable and documented costs or expenses (including reasonable and documented attorneys’ fees and Expenses) and nothing contained herein shall prevent the Collateral Agent or any Secured Party from foreclosing or causing a foreclosure on the Collateral as a result of an Event of Default on account of Class D Obligations or Advance Facility Obligations.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Beginning on the rights of Senior Lender under the Loan Documents and Section 3 hereof, date which is five (5) days after any Event of Default shall have occurred and while such Event of Default is continuing, Grantee Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeSecured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes GranteeSecured Party, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of GranteeSecured Party, appears to be prior or superior to its security interest. Grantee Secured Party shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Secured Party’s request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee Secured Party shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(f), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee Secured Party of any other amount required by any provision of law, need Grantee Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Secured Party arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee Secured Party need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the its Collateral are insufficient to pay all amounts to which Grantee Secured Party is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee Secured Party to collect such deficiency. 16.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Secured Party shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), Secured Party may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Secured Party may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Secured Party shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Secured Party may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee Secured Party be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction. 17.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeSecured Party, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Secured Party in the following order of priorities: FIRST, to Grantee Secured Party in an amount sufficient to pay in full the reasonable costs of Grantee Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Secured Party in connection therewith, including, without limitation, reasonable attorneys' ’ fees; SECOND, to Grantee Secured Party in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Burst Com Inc)
Rights and Remedies Upon Default. Beginning on the date which is ten (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after 10)business daysafter any Event of Default shall have occurred and while such Event of Default is continuing: Upon the written consent of the Required Purchasers, Grantee the Agent may exercise in addition to all other rights and remedies granted to it them under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Purchase Agreement all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of GranteeAgent's offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Required Purchasers' request, to assemble its Collateral and make it available to Grantee the Agent at places which Grantee the Agent shall reasonably select, whether at Grantor's premises or elsewhere. Grantee The Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d6(e) below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Agent need not give more than ten twenty (1020) days' prior written notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Agent shall remain liable determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any deficiency reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the "Act"), the Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Agent may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Agent may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any of such Collateral shall not be freely distributable to the proceeds public without registration under the Act at the time of any proposed sale hereunder, then the Agent shall not be required to effect such registration or disposition cause the same to be effected but may, in their discretion (subject only to applicable requirements of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantorlaw), Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees require that in any sale of any Collateralhereunder (including a sale at auction) be conducted subject to such restrictions as the Agent may, whether at a foreclosure sale in its discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restriction.
(c) the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws. Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Agent, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
. Grantor hereby waives presentment, demand, protest or any notice (dto the maximum extent permitted by applicable law) After payment of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral. The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Agent in the following order of priorities, subject to any subordination to the Senior Lenders: FIRST, to Grantee Agent in an amount sufficient to pay in full the reasonable costs of Grantee the Agent in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Agent in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee the Credit Parties in an amount equal amounts proportional to the Pro Rata share of the then unpaid Secured ObligationsObligations of each Credit Party; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Mobile Reach International Inc)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred occur and while such Event of Default is be continuing, Grantee the Administrative Agent may exercise exercise, in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Credit Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, including, without limitation, the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor the Grantors or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral (including, without limitation, dividends or distributions on Pledged Collateral) and may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shopship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, and use any trademark, trade name, trade style, copyright, or process used or owned by any Grantor; (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's the Administrative Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To risk and (iii) exercise (A) all voting, consent, corporate and other rights pertaining to the extent Grantor has Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any issuer of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so, each so or delay in so doing. Each Grantor authorizes Granteethe Administrative Agent, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontest, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Administrative Agent, appears to be prior or superior to its security interest. Grantee The Administrative Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted not prohibited by applicable law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor further agrees, at Grantee's the Administrative Agent’s request, to assemble its the Collateral and make it available to Grantee the Administrative Agent at places which Grantee the Administrative Agent shall reasonably select, whether at any Grantor's ’s premises or elsewhere. Grantee The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 7(g), below, with each Grantor remaining jointly and severally Grantors shall remain liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee the Administrative Agent of any other amount required by any provision of law, including Section 9-608(a)(l)(C) of the UCC (or any other then applicable provision of the UCC), need Grantee the Administrative Agent account for the surplus, if any, to Grantorthe Grantors. To the maximum extent permitted not prohibited by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Administrative Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the gross negligence or willful misconduct of the Administrative Agent. Each Grantor agrees that Grantee the Administrative Agent need not give more than ten (10) days' ’ prior written notice (which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient insufficient, to pay all amounts to which Grantee is entitled from Grantorthe Administrative Agent, Grantor the Security Trustee and the Lenders are entitled, and Grantors shall also being be liable for the attorney attorneys’ fees or costs of any attorneys employed by Grantee the Administrative Agent to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Administrative Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Administrative Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Administrative Agent may, in its sole discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Administrative Agent shall not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws. In order to permit the Administrative Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall terminate upon the earlier of the payment in full of the Secured Obligations or the cure of the Event of Default. Each Grantor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Administrative Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that such issuer shall be fully protected in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Collateral directly to the Administrative Agent.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such each Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Administrative Agent be liable nor accountable to any Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Each Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Administrative Agent, including, without limitation, reasonable attorneys' fees’ fees and costs, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent not prohibited by applicable law) of any debt secured by kind in connection with this Security Agreement or any Collateral.
(f) Each Grantor agrees that a Permitted Lienbreach of any covenants contained in this Section 7 will cause irreparable injury to the Administrative Agent, that in such event the Proceeds Administrative Agent and would have no adequate remedy at law in respect of such breach and, as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against the Grantors, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable.
(g) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Administrative Agent in the following order of priorities: FIRSTFirst, to Grantee the Administrative Agent and the Security Trustee in an amount sufficient to pay in full the reasonable costs and expenses of Grantee the Administrative Agent and the Security Trustee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee the Administrative Agent or the Security Trustee in connection therewith, including, without limitation, reasonable attorneys' fees’ fees and costs; SECONDSecond, to Grantee the Lenders in an amount equal to accrued interest then due and payable under this Security Agreement and the other Credit Documents (except for Lender Rate Contracts and Lender Bank Products); Third, pari passu and ratably, to (i) the Lenders in an amount equal to the principal amount of the outstanding Loans and L/C Borrowings and to Cash Collateralize the remaining L/C Obligations on a pro rata basis in accordance with the then outstanding principal amount of the Loans and L/C Obligations (with the portion allocated to the Revolving Loans, Swing Line Loans and L/C Obligations to be applied first to repay the Swing Line Loans in full, second to repay the Revolving Loans in full and then to Cash Collateralize the Secured Obligations in an amount equal to the then unpaid Effective Amount of all L/C Obligations) and (ii) to the Lender(s) and Affiliates thereof to whom obligations are owed in connection with any Lender Rate Contract the terms of which comply with the Credit Agreement to the extent of the associated Termination Value of such Lender Rate Contract, and such proceeds will not be applied to the extent of any excess over such Termination Value in connection with any Lender Rate Contact, until the Secured Obligations (other than obligations under this clause (ii)) have been paid in full and the Revolving Loan Commitments have been terminated; Fourth, to the Lenders in an amount equal to any other Secured Obligations, which are then unpaid (other than any Secured Obligations related to Lender Rate Contracts and Lender Bank Products); Fifth, to the Lenders and Affiliates thereof in an amount equal to any other Secured Obligations related to Lender Rate Contracts the terms of which comply with the Credit Agreement, which are then unpaid; Sixth, to the Lenders and Affiliates thereof in an amount equal to any Secured Obligations related to Lender Bank Products which are then unpaid; and FINALLYFinally, upon payment in full of all of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may directpersons legally entitled thereto.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have occurred and while such or Potential Event of Default is continuingshall occur, Grantee Banks or Agent may exercise in addition to all other rights and remedies granted to it under this Security Agreement and Agreement, the Note Credit Agreement, the other Loan Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeAgent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral, and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, Banks and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's Agent’s request, to assemble its the Collateral and make it available to Grantee Agent at places which Grantee Agent shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee If any Collateral shall require rebuilding, repairing, maintenance, preparation, or is in process or other unfinished state, the Agent shall have the right, at its option, to do such rebuilding, repairing, preparation, processing or completion of manufacturing, for the purpose of putting the Collateral in such salable or disposable form as it shall deem appropriate. Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) belowhereof, with each Grantor remaining jointly liable with respect to its Loan Document Obligations and severally liable for Hedging Obligations to the extent of any deficiency remaining unpaid after between the amount of the Proceeds of the Collateral granted by it hereunder and the aggregate amount of such applicationObligations, and only after so paying over such net proceeds and after the payment by Grantee Agent of any other amount required by any provision of law, including any applicable provision of Article 9 of the UCC, need Grantee Agent account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee Banks and Agent arising out of the repossession, retention or sale of the CollateralCollateral except such as arise out of the gross negligence or willful misconduct of Banks or Agent. Each Grantor agrees that Grantee Agent need not give more than ten (10) days' ’ notice (which notification shall be deemed given when mailed or delivered on an overnight basis, postage prepaid, addressed to Grantor at its address referred to on the signature page of the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from GrantorBanks and Agent are entitled, Grantor also being liable for the attorney costs reasonable fees of any attorneys employed by Grantee Banks and Agent to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of GranteeBanks and Agent, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(c) Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
(d) After payment of any debt secured by a Permitted Lien, the The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee Agent, on behalf of Banks, in the following order of priorities: FIRSTFirst, to Grantee Agent in an amount sufficient to pay in full the reasonable costs of Grantee Agent in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee Agent in connection therewith, including, without limitation, the expenses of retaking, holding, storing, processing and preparing for sale, selling, lease, leasing and the like, and to the reasonable attorneys' fees’ fees and legal expenses incurred by the Agent; SECONDSecond, to Grantee in an Agent, for disbursement to Banks ratably according to Bank’s pro rata share of the sum of (i) the principal amount equal to outstanding under all Loans advanced by Banks under the then unpaid Credit agreement and (ii) the dollar value of the exposure of Banks under any Hedging Agreements, for payment of the Secured Obligations; and FINALLYFinally, upon payment in full of all of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC representatives or as a court of competent jurisdiction may direct.
(e) To the extent permitted by applicable law, Grantor waives all claims, damages and demands against the Agent and Banks arising out of the repossession, removal, retention, sale or lease of the Collateral except to extent the same claims, damages and demands are due to Agent or Banks’ willful misconduct.
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing: Upon the written consent of the Secured Party, Grantee the Secured Party may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Purchase Agreement all rights and remedies of a secured party Secured Party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Secured Party, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon either Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by either Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's board or at any of Granteethe Secured Party's offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Granteethe Secured Party's request, to assemble its Collateral and make it available to Grantee the Secured Party at places which Grantee the Secured Party shall reasonably select, whether at a Grantor's premises or elsewhere. Grantee The Secured Party shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor Platinum remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Secured Party need not give more than ten thirty (1030) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that in any sale of any Collateral, whether at a foreclosure sale or otherwise, Grantee is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(c) Grantor also agrees to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment of any debt secured by a Permitted Lien, the Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.
Appears in 1 contract
Sources: Security Agreement (Platinum Research Organization, Inc.)
Rights and Remedies Upon Default. (a) Subject to Upon the rights occurrence of Senior Lender under the Loan Documents and Section 3 hereof, after any Event of Default shall have occurred and while such Event of Default is continuing:
(a) The Collateral Agent, Grantee on behalf of the Secured Parties, may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and under any other instrument or agreement securing, evidencing or relating to the Secured ObligationsPurchase Agreement, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demandsperson, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law)may, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem bestcommercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Grantee, on the terms set forth in this Section 7, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contract, or compromise any encumbrance, charge, or lien which, in the opinion of Grantee, appears to be prior or superior to its security interest. Grantee shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) 6(e), below, with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Grantee of any other amount required by any provision of law, need Grantee account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten twenty (1020) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) Each Grantor agrees that As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 6(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 6(b), if any Collateralof such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, whether then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at a foreclosure sale auction) be conducted subject to such restrictions as the Collateral Agent may, in its discretion, deem necessary or otherwise, Grantee is hereby authorized to comply with any limitation or restriction appropriate in connection with order that such sale as it (notwithstanding any failure so to register) may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and require that such prospective bidders and purchasers have certain qualifications), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold effected in compliance with any such limitation or restrictionthe Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor ▇▇▇▇▇▇▇ also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(d) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(e) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after If any Event of Default shall have has occurred and while such is continuing, Administrative Agent will have the following rights and remedies as set forth in this Section 8:
(a) If any Event of Default has occurred and is continuing, Grantee may exercise in addition to all other rights and remedies granted to it under this Security Agreement and the Note and other Loan Documents, including the Collateral Documents, or under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, Administrative Agent may exercise all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event GranteeAdministrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon such Grantor or any other person Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable lawLaw), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by such Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Administrative Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent any Grantor has the right to do so, each such Grantor authorizes GranteeAdministrative Agent, on the terms set forth in this Section 78, to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, charge or lien other Lien which, in the opinion of GranteeAdministrative Agent, appears to be prior or superior to its security interest. Grantee Each Grantor further agrees, at Administrative Agent’s request, to assemble its Collateral and make it available to Administrative Agent during regular business hours and at places which Administrative Agent reasonably selects, whether at such Grantor’s premises or elsewhere. To the maximum extent permitted by applicable Law, each Grantor waives all claims, damages, and demands against Administrative Agent or any Secured Party arising out of the repossession, retention or sale of the Collateral, except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent or any Secured Party acted with gross negligence or willful misconduct. Each Grantor agrees that Administrative Agent need not give more than ten days’ notice (which notification will be deemed given to the Grantors in accordance with Section 10.02 of the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. 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 a 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 Administrative Agent may fix and state in the notice of sale. Administrative Agent or any Secured Party will have the right upon any such public sale or sales sales, and, to the extent permitted by lawLaw, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Each Grantor further agreesagrees that Administrative Agent has the right to (and, at Grantee's request, to assemble the direction of the Required Lenders will) credit bid all or any portion of the amount of the then outstanding Secured Obligations at any sale. Each Grantor will remain liable for any deficiency if the proceeds of any sale or disposition of its Collateral are insufficient to pay all amounts to which Administrative Agent and make it available the Secured Parties are entitled from such Grantor, such Grantor also being liable for the attorney’s fees of any attorneys employed by Administrative Agent or any Secured Party to Grantee at places which Grantee shall reasonably selectcollect such deficiency. Each Grantor agrees that the internet constitutes a “place” for the purposes of Section 9-610(b) of the UCC and that any sale of Collateral to a licensor pursuant to the terms of a License is sufficient to constitute a commercially reasonable sale (including as to method, whether at Grantor's premises or elsewhereterms, manner and time) within the meaning of Section 9-610 of the UCC. Grantee shall Administrative Agent and the Secured Parties will apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below8(f), with each Grantor remaining jointly and severally liable for to the extent of any deficiency remaining unpaid between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations after such application, and only after so paying over such net proceeds and after the payment by Grantee Administrative Agent of any other amount required by any provision of law, need Grantee Administrative Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee need not give more than ten (10) days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee to collect such deficiency.
(b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Administrative Agent determines to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold will not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended, the “Act”), Administrative Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Administrative Agent may deem necessary or advisable, but subject to the other requirements of this Section 8(b), and will not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event Administrative Agent may, in its sole discretion, (i) in accordance with applicable securities Laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or has been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 8(b), if any of such Collateral will not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then Administrative Agent will not be required to effect such registration or cause the same to be effected but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as Administrative Agent may, in its sole discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other Laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws. Each Grantor further agrees that: (A) if Administrative Agent will, pursuant to the terms of this Agreement, sell or cause the Pledged Interests or any portion of them to be sold at a private sale, Administrative Agent will have the right to rely upon the advice of any nationally recognized brokerage or investment firm (but will not be obligated to seek such advice and the failure to do so will not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer the Pledged Interests or any portion thereof for sale and as to the best price reasonably obtainable at a private sale thereof; and (B) such reliance will be conclusive evidence that Administrative Agent has handled the disposition in a commercially reasonable manner.
(c) Each Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law Law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authorityGovernmental Authority, and such each Grantor further agrees that such compliance shall will not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee will Administrative Agent nor any of the Secured Parties be liable nor or accountable to such Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Except as otherwise expressly permitted herein, each Grantor also agrees hereby waives presentment, demand for payment, protest or any notice of default or nonpayment to pay all reasonable fees, costs and expenses of Grantee, including, without limitation, reasonable attorneys' fees, incurred in connection with the enforcement of or upon any of its rights and remedies hereunderthe Borrower or any other Loan Party (to the maximum extent permitted by applicable Law) with respect to the Secured Obligations.
(de) After payment Each Grantor agrees that a breach of any debt secured covenants contained in this Section 8 to be provided by this Agreement will cause irreparable injury to Administrative Agent, on behalf of itself and the Secured Parties, that in such event Administrative Agent and the Secured Parties would have no adequate remedy at law in respect of such breach and, as a Permitted Lienconsequence, agrees that in such event each and every covenant contained in this Section 8 will be specifically enforceable against such Grantor, and each Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Proceeds Secured Obligations are not then due and payable.
(f) Following the occurrence and during the continuation of an Event of Default or following any saleexercise of remedies provided for in this Section 8, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full amounts received on account of the Secured Obligations, to Grantor or its representatives, Obligations will be applied by Administrative Agent as set forth in accordance with Section 8.05 of the UCC or as a court of competent jurisdiction may directCredit Agreement.
Appears in 1 contract
Sources: Security Agreement (Semtech Corp)
Rights and Remedies Upon Default. (a) Subject to the rights of Senior Lender under the Loan Documents and Section 3 hereof, after After any Event of Default shall have occurred and while such Event of Default is continuing:
(a) The Collateral Agent, Grantee on behalf of the Secured Parties, may exercise in addition to all other rights and remedies granted to it under this Security Agreement and or the Note Other Loan Documents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Granteethe Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker's ’s board or at any of Grantee's Secured Party’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. To the extent Grantor has the right to do so, each Grantor authorizes Granteethe Collateral Agent, on the terms set forth in this Section 7, 7 to enter the premises where the Collateral is located, to take possession of the Collateral, or any part of it, and to pay, purchase, contractcontact, or compromise any encumbrance, charge, or lien which, in the opinion of Granteethe Collateral Agent, appears to be prior or superior to its security interest. Grantee The Collateral Agent shall have the right upon any such public sale or sales sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of redemption, which equity of redemption Grantor hereby releases. Each Grantor further agrees, at Grantee's the Collateral Agent’s request, to assemble its the Collateral and make it available to Grantee the Collateral Agent at places which Grantee the Collateral Agent shall reasonably select, whether at Grantor's ’s premises or elsewhere. Grantee The Collateral Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(d) below7(f), with each Grantor remaining jointly and severally liable for any deficiency remaining unpaid after such application, below and only after so paying over such net proceeds and after the payment by Grantee the Collateral Agent of any other amount required by any provision of law, need Grantee the Collateral Agent or any Secured Party account for the surplus, if any, to Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Grantee the Collateral Agent and the Secured Parties arising out of the repossession, retention or sale of the Collateral. Each Grantor agrees that Grantee the Collateral Agent need not give more than ten (10) days' ’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Grantee is the Collateral Agent and the Secured Parties are entitled from Grantor, Grantor also being liable for the attorney costs of any attorneys employed by Grantee the Collateral Agent or the Secured Parties to collect such deficiency.
(b) Each As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when the Collateral Agent shall determine to exercise its right to sell the whole or any part of such Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so amended the “Act”), the Collateral Agent may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the same to be effected. Without limiting the generality of the foregoing, in any such event the Collateral Agent may, in its discretion, (i) in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii) restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the Act at the time of any proposed sale hereunder, then the Collateral Agent shall not be required to effect such registration or cause the same to be effected but may, in its discretion (subject only to applicable requirements of law), require that any sale hereunder (including a sale at auction) be conducted subject to such restrictions as the Collateral Agent may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.
(c) Grantor agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Grantee the Collateral Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be reasonably advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and purchasers, require that such prospective bidders and purchasers have certain qualificationsqualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and such Grantor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall Grantee the Collateral Agent or the Secured Parties be liable nor accountable to Grantor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(cd) Grantor also agrees to pay all reasonable fees, costs and expenses of Granteethe Collateral Agent and the Secured Parties, including, without limitation, reasonable attorneys' ’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.
(de) After payment Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any debt secured by a Permitted Lien, the kind in connection with this Security Agreement or any Collateral.
(f) The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Grantee the Collateral Agent in the following order of priorities: FIRST, to Grantee in an amount sufficient to pay in full the reasonable costs of Grantee in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by Grantee in connection therewith, including, without limitation, reasonable attorneys' fees; SECOND, to Grantee in an amount equal to the then unpaid Secured Obligations; and FINALLY, upon payment in full of the Secured Obligations, to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.:
Appears in 1 contract
Sources: Security Agreement (Vaxgen Inc)