Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Owner, shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law: (i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice; (ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement; (iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and (iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements. 33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement. 33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 4 contracts
Sources: Cell Owner Agreement (Energea Portfolio 3 Africa LLC), Investor Services Agreement (Energea Portfolio 3 Africa LLC), Cell Owner Agreement (Energea Portfolio 3 Africa LLC)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent: (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 4 contracts
Sources: Term Loan and Security Agreement (ARKO Corp.), Term Loan and Security Agreement (GPM Petroleum LP), Term Loan and Security Agreement (GPM Petroleum LP)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 hereof (other than Section 10.7(g) hereof), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Event of Default under Section 10.7(g) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used by such Loan Party in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The Net Cash Proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate the Loan Parties shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for Disposition or otherwise to complete raw material or work in process into finished goods or other finished products for Disposition; (ii) to fail to obtain third party consents for access to Collateral to be Disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise Dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to Dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to Dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or Disposition of Collateral or to provide to Agent a guaranteed return from the collection or Disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or Disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing in this Section 11.1(b) shall be construed to exclude grant any rights to any Loan Party or deprive Solar Cell Owner to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent shall be free to purchase all or any part of the Investment Property Collateral. Any such sale may terminate this Cell Owner Agreement by providing written be on cash or credit. Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property Collateral for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of termination the sale may have been given. Agent may adjourn any sale and sell at the time and place to Sun-Exwhich the sale is adjourned. If the Investment Property Collateral is customarily sold on a recognized market or threatens to decline speedily in value, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in Agent may sell such notice;Investment Property Collateral at any time without giving prior notice to any Loan Party or other Person.
(ii) Majority Owners Each Loan Party recognizes that Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property Collateral by reason of this Cell Owner Agreement certain prohibitions of the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property Collateral for their own account, for investment and without a view to the distribution or resale thereof. Each Loan Party understands that private sales so made may enforce be at prices and protect on other terms less favorable to the rights seller than if the Investment Property Collateral were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Investment Property Collateral for the period of this Cell Owner Agreement;time necessary to permit the issuer of the securities which are part of the Investment Property Collateral (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Loan Party agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) Majority Owners The Net Cash Proceeds arising from the Disposition of the Investment Property Collateral after deducting expenses incurred by Agent will be applied to the Obligations pursuant to Section 11.5 hereof. If any excess remains after the discharge of all of the Obligations, the same will be paid to the applicable Loan Party or to any other Person that may apply be legally entitled thereto. At any security deposit time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners all of the Investment Property Collateral into its name or that of its nominee and may exercise all voting rights and remedies with respect to the Investment Property Collateral, but no such transfer shall constitute a taking of a secured party under Legal Requirements.
33.2 No default such Investment Property Collateral in the performance satisfaction of any or all of the termsObligations, covenants and (B) Agent shall be entitled to receive, for application to the Obligations, all cash or conditions of this Cell Owner Agreement stock dividends and distributions, interest and premiums declared or paid on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementInvestment Property Collateral.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7, all Obligations (other than Hedging Obligations) shall be immediately due and payable and this Agreement and the obligation of the Lenders and to make Advances and the Issuer to issue Letters of Credit shall be deemed terminated all without presentment, demand or notice of any kind (all of which are hereby expressly waived by each Loan Party), and (ii) any Event of Default (other than pursuant to Section 10.7), the Agent may, and upon the written request of the Required Lenders shall, declare all Obligations to be immediately due and payable and terminate the obligation of the Lenders to make Advances and the Issuer to issue Letters of Credit, all without presentment, demand or notice of any kind (all of which are hereby expressly waived by each Loan Party). Upon the occurrence of any Event of Default Solar Cell OwnerDefault, the Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the Uniform Commercial Code and at law or equity generally, separate including the right to foreclose the security interests granted herein and cumulative to realize upon any Collateral by any available judicial procedure or to take, to the extent permitted by applicable law, possession of and shall not operate sell any or all of the Collateral with or without judicial process. The Agent may enter any Obligor’s premises or other premises without legal process and without incurring liability to exclude such Obligor therefor, and the Agent may thereupon, or deprive Solar Cell Owner of at any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Extime thereafter, in which event its discretion without notice or demand, take the Term shall endCollateral and remove the same to such place as the Agent may deem advisable and the Agent may require such Obligor to make the Collateral available to the Agent at a convenient place or places. With or without having the Collateral at the time or place of sale, and all right, title and interest of Sun-Ex hereunder shall expire on subject to the date stated in such notice;
(ii) Majority Owners may enforce the applicable provisions of this Cell Owner Agreement and the Uniform Commercial Code, the Agent may enforce and protect sell the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained hereinCollateral, or for the enforcement of any other appropriate legal part thereof, at public or equitable remedyprivate sale, including recovery of all moneys due at any time or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit place, in one or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facilitymore sales, Majority Owners may exercise all rights at such price or prices, and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the upon such terms, covenants either for cash, credit or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Exfuture delivery, as the case Agent may beelect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Agent shall give such Obligor reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to such Obligor at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale the Agent, any Lender or the Issuer may bid for and become the purchaser, and the Agent, any Lender, the Issuer or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption, and such right and equity are hereby expressly waived and released by each Obligor. In connection with the exercise of the foregoing remedies, the Agent is granted permission to use all of each Obligor’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be delayed applied in or prevented from remedying accordance with Section 11.7. If any deficiency shall arise, the same due Borrowers shall remain liable to Force Majeure; but if the Agent, the Lenders and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementIssuer therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 3 contracts
Sources: Credit and Security Agreement (Stoneridge Inc), Credit and Security Agreement (Stoneridge Inc), Credit and Security Agreement (Stoneridge Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders, all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. In compliance with Applicable Law, Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) Business Days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. Each Borrower waives any right to require a marshalling of assets. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.6. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) Upon the occurrence and during the continuance of an Event of Default, in connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual irrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (i) trademarks, trademark applications, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory, and (ii) Equipment for the purpose of completing the manufacture of unfinished goods.
(c) Upon the occurrence and during the continuance of an Event of Default, to the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 3 contracts
Sources: Revolving Credit, Term Loan, Guaranty, and Security Agreement (Rocky Brands, Inc.), Revolving Credit, Guaranty, and Security Agreement (Rocky Brands, Inc.), Revolving Credit, Guaranty, and Security Agreement (Rocky Brands, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of Obligations and any fees payable under this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrowers shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Lesco Inc/Oh), Revolving Credit, Term Loan and Security Agreement (Lesco Inc/Oh), Revolving Credit and Security Agreement (Lesco Inc/Oh)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders all Obligations shall be immediately due and payable and Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endto, and all rightat the direction of Required Lenders shall, title exercise any and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of (a) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of the Lenders and the Issuer to make Advances and maintain Loans shall be deemed terminated; and (b) any other Event of Default and at any time thereafter (such Event of Default not having previously been waived by the Agent), at the option of the Required Lenders, all Obligations shall be immediately due and payable and the Lenders and the Issuer shall have the right to terminate this Agreement and to terminate the obligation of the Lenders and the Issuer to make Advances and maintain Loans. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, the Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the Uniform Commercial Code and at law or equity generally, separate including the right to foreclose the security interests granted herein and cumulative to realize upon any Collateral by any available judicial procedure and/or to take, to the extent permitted by applicable law, possession of and shall not operate to exclude sell any or deprive Solar Cell Owner all of the Collateral with or without judicial process. The Agent may enter any of any Loan Party’s premises or other right premises without legal process and without incurring liability to any Loan Party therefor, and the Agent may thereupon, or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exat any time thereafter, in which event its discretion without notice or demand, take the Term shall endCollateral and remove the same to such place as the Agent may deem advisable and the Agent may require the Loan Parties to make the Collateral available to the Agent at a convenient place. With or without having the Collateral at the time or place of sale, the Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in upon such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants either for cash, credit or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Exfuture delivery, as the case Agent may beelect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale the Agent or the Issuer may bid for and become the purchaser, and the Agent, any Lender, the Issuer or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, the Agent is granted permission to use all of each Loan Party’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (y) Inventory for the purpose of disposing of such Inventory and (z) equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be delayed applied in or prevented from remedying accordance with Section 11.6. If any deficiency shall arise, the same due Loan Parties shall remain liable to Force Majeure; but if the Agent, the Lenders and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementIssuer therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 3 contracts
Sources: Credit Agreement (Ramaco Resources, Inc.), Credit and Security Agreement (Ramaco Resources, Inc.), Credit and Security Agreement (Ramaco Resources, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders, all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (i) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (ii) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate Borrowers shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent: (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to exclude grant any rights to any Borrower or deprive Solar Cell Owner to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent shall be free to purchase all or any part of the Investment Property. Any such sale may terminate this Cell Owner Agreement by providing written be on cash or credit. Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of termination the sale may have been given. Agent may adjourn any sale and sell at the time and place to Sun-Exwhich the sale is adjourned. If the Investment Property is customarily sold on a recognized market or threatens to decline speedily in value, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in Agent may sell such notice;Investment Property at any time without giving prior notice to any Borrower or other Person.
(ii) Majority Owners Each Borrower recognizes that Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property by reason of this Cell Owner Agreement certain prohibitions of the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property for their own account, for investment and without a view to the distribution or resale thereof. Each Borrower understands that private sales so made may enforce be at prices and protect on other terms less favorable to the rights seller than if the Investment Property were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Investment Property for the period of this Cell Owner Agreement;time necessary to permit the issuer of the securities which are part of the Investment Property (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Borrower agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) Majority Owners The net cash proceeds arising from the disposition of the Investment Property after deducting expenses incurred by Agent will be applied to the Obligations pursuant to Section 11.5 hereof. If any excess remains after the discharge of all of the Obligations, the same will be paid to the applicable Borrower or to any other Person that may apply be legally entitled thereto. At any security deposit time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners all of the Investment Property into its name or that of its nominee and may exercise all voting rights and remedies with respect to the Investment Property, but no such transfer shall constitute a taking of a secured party under Legal Requirements.
33.2 No default such Investment Property in the performance satisfaction of any or all of the termsObligations, covenants and (B) Agent shall be entitled to receive, for application to the Obligations, all cash or conditions of this Cell Owner Agreement stock dividends and distributions, interest and premiums declared or paid on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementInvestment Property.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence and during the continuation of any Event of Default Solar Cell OwnerDefault, subject to Applicable Law, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and other Applicable Law and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Credit Party’s premises or other premises without legal process and without incurring liability to any Credit Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Credit Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Credit Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Credit Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Credit Party’s (a) trademarks, trade styles, trade names, trade name applications, domain names, domain name applications, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof unless required otherwise by Applicable Law. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Credit Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Credit Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Credit Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment; (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Credit Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Credit Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence and during the continuation of any Event of Default Solar Cell OwnerDefault, subject to Applicable Law, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and other Applicable Law and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, trade name applications, domain names, domain name applications, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof unless required otherwise by Applicable Law. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment; (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement
Rights and Remedies. 33.1 Upon (a) In addition to the acceleration provisions set forth in Article VIII above, upon the occurrence and continuation of an Event of Default, Agent shall have the right to (and at the request of Requisite Lenders, shall) exercise any and all rights, options and remedies provided for in any Loan Document, under the UCC or at law or in equity, including, without limitation, the right to (i) apply any property of Borrower held by Agent to reduce the Obligations, (ii) foreclose the Liens created under the Loan Documents, (iii) realize upon, take possession of and/or sell any Collateral or securities pledged, with or without judicial process, (iv) exercise all rights and powers with respect to the Collateral as Borrower might exercise, (v) collect and send notices regarding the Collateral, with or without judicial process, (vi) by its own means or with judicial assistance, enter any premises at which Collateral and/or pledged securities are located, or render any of the foregoing unusable or dispose of the Collateral and/or pledged securities on such premises without any liability for rent, storage, utilities, or other sums, and Borrower shall not resist or interfere with such action, (vii) at Borrower’s expense, require that all or any part of the Collateral be assembled and made available to Agent at any place designated by Agent in its sole discretion, (viii) reduce or otherwise change the Facility Cap and/or any component of the Facility Cap and/or (ix) relinquish or abandon any Collateral or securities pledged or any Lien thereon. In addition to the forgoing, Agent, in its sole discretion, shall have the right to make one or more Protective Advances in accordance with the terms of Section 2.8 with subsequent notice to Borrower. Such Protective Advances shall be deemed Advances hereunder and shall be added to the Obligations until reimbursed to Agent, for its own account and for the benefit of the other Lenders, and shall be secured by the Collateral, and such Protective Advances shall not be construed as a waiver by Agent or Lenders of any Event of Default Solar Cell Owner, shall have or any other rights or remedies of Agent or Lenders.
(b) Borrower agrees that notice received at least ten (10) calendar days before the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner time of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained hereinintended public sale, or for the enforcement time after which any private sale or other disposition of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement Collateral is determined to be a secured credit facilitymade, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if be reasonable notice of such sale or other disposition. If permitted by Applicable Law, any perishable Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Agent without prior notice to Borrower. At any sale or disposition of Collateral or securities pledged, Agent may (to the extent permitted by Applicable Law) purchase all or any part thereof free from any right of subsequent redemption by Borrower which right is hereby waived and so long as Solar Cell Owner released. Borrower covenants and agrees not to interfere with or Sun-Eximpose any obstacle to Agent’s exercise of its rights and remedies with respect to the Collateral; provided, as the case may behowever, Borrower shall be delayed in permitted to bid at any such sale or prevented from remedying disposition of Collateral. In dealing with or disposing of the same due Collateral or any part thereof, Agent shall not be required to Force Majeure; but if and when the occurrence give priority or condition which delayed preference to any item of Collateral or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, otherwise to commence the correction of such default marshal assets or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation take possession or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementsell any Collateral with judicial process.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Domestic Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Domestic Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter (if such Event of Default has not previously been waived in writing by Agent, Required Lenders, or all Lenders, as applicable), at the option of Agent with the consent of the Required Lenders, or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2, any Default under Section 10.7(vii), the obligation of ▇▇▇▇▇▇▇ to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, (i) Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, under the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process, (ii) Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place, (iii) with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect, (iv) appoint by instrument in writing one or more receiver, a receiver, a manager or a receiver and manager of any Borrower or any or all of the Collateral with such rights, powers and authority (including any or all of the rights, powers and authority of Agent under this Agreement) as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such Receiver from time to time and, to the extent permitted by applicable law, any such receiver, a receiver, a manager or a receiver and manager appointed by Agent shall (for purposes relating to responsibility for such receiver, a receiver, a manager or a receiver and manager’s acts or omissions) be considered to be the agent of the applicable ▇▇▇▇▇▇▇▇ and not of Agent or (v) obtain from any court of competent jurisdiction an order for the appointment of a secured party under Legal Requirements.
33.2 No default receiver, a receiver, a manager or a receiver and manager of any Borrower or for the sale or foreclosure of any or all of the Collateral. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. At the time of and in connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent reasonably deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section
11.1 (b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 hereof (other than Section 10.7(g) hereof), all Obligations shall be immediately due and payable and this Agreement shall be deemed terminated, and (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used by such Loan Party in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The Net Cash Proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate the Loan Parties shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for Disposition or otherwise to complete raw material or work in process into finished goods or other finished products for Disposition; (ii) to fail to obtain third party consents for access to Collateral to be Disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise Dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to Dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to Dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or Disposition of Collateral or to provide to Agent a guaranteed return from the collection or Disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or Disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing in this Section 11.1(b) shall be construed to exclude grant any rights to any Loan Party or deprive Solar Cell Owner to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent shall be free to purchase all or any part of the Investment Property Collateral. Any such sale may terminate this Cell Owner Agreement by providing written be on cash or credit. Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property Collateral for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of termination the sale may have been given. Agent may adjourn any sale and sell at the time and place to Sun-Exwhich the sale is adjourned. If the Investment Property Collateral is customarily sold on a recognized market or threatens to decline speedily in value, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in Agent may sell such notice;Investment Property Collateral at any time without giving prior notice to any Loan Party or other Person.
(ii) Majority Owners Each Loan Party recognizes that Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property Collateral by reason of this Cell Owner Agreement certain prohibitions of the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property Collateral for their own account, for investment and without a view to the distribution or resale thereof. Each Loan Party understands that private sales so made may enforce be at prices and protect on other terms less favorable to the rights seller than if the Investment Property Collateral were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Investment Property Collateral for the period of this Cell Owner Agreement;time necessary to permit the issuer of the securities which are part of the Investment Property Collateral (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Loan Party agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) Majority Owners The Net Cash Proceeds arising from the Disposition of the Investment Property Collateral after deducting expenses incurred by Agent will be applied to the Obligations pursuant to Section 11.5 hereof. If any excess remains after the discharge of all of the Obligations, the same will be paid to the applicable Loan Party or to any other Person that may apply be legally entitled thereto. At any security deposit time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners all of the Investment Property Collateral into its name or that of its nominee and may exercise all voting rights and remedies with respect to the Investment Property Collateral, but no such transfer shall constitute a taking of a secured party under Legal Requirements.
33.2 No default such Investment Property Collateral in the performance satisfaction of any or all of the termsObligations, covenants and (B) Agent shall be entitled to receive, for application to the Obligations, all cash or conditions of this Cell Owner Agreement stock dividends and distributions, interest and premiums declared or paid on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementInvestment Property Collateral.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Term Loan Credit and Security Agreement (Quantum Corp /De/), Term Loan Credit and Security Agreement (Quantum Corp /De/)
Rights and Remedies. 33.1 Upon The Administrative Agent (for itself and on behalf of the occurrence of any Event of Default Solar Cell Owner, other Secured Parties) shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance UCC and other Applicable Law. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may (and, subject to direction by the Required Lenders, shall), among other remedies: (i) instruct the Borrower to deliver any or all of the termsCollateral, covenants the Contracts and any other documents relating to the Collateral to the Administrative Agent or conditions its designees and otherwise give all instructions for the Borrower regarding the Collateral; (ii) subject to Section 6.02(b), sell or otherwise dispose of this Cell Owner Agreement on the Collateral in a commercially reasonable manner; (iii) take control of the Proceeds of any such Collateral; (iv) subject to the provisions of the applicable Contracts, exercise any consensual or voting rights in respect of the Collateral; (v) make extensions, exchanges or substitutions for, all or any part of Sun-Ex the Collateral; (vi) enforce the Borrower’s rights and remedies with respect to the Collateral; (vii) institute and prosecute legal and equitable proceedings to enforce collection of, or Solar Cell Ownerrealize upon, any of the Collateral; (viii) shall be deemed require that the Borrower immediately take all actions necessary to continue cause the liquidation of the Collateral in order to pay all amounts due and payable in respect of the Obligations, in accordance with the terms of the Related Documents; (ix) redeem or withdraw or cause the Borrower to redeem or withdraw any asset of the Borrower to pay amounts due and payable in respect of the Obligations; (x) make copies of or, if necessary, remove from the Borrower’s, the Backup Servicer’s, the Servicer’s and so long as Solar Cell Owner their respective agents’ place of business all books, records and documents relating to the Collateral; and (xi) endorse the name of the Borrower upon any items of payment relating to the Collateral or Sun-Exupon any proof of claim in bankruptcy against an obligor. The Borrower hereby agrees that, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when upon the occurrence and during the continuance of an Event of Default, at the request of the Administrative Agent or condition which delayed or prevented the remedying of such default shall cease or be removedRequired Lenders (acting through the Administrative Agent), it shall execute all documents and agreements which are necessary or appropriate to have the Collateral to be assigned to the obligation Administrative Agent or its designee. For purposes of Solar Cell Owner taking the actions described in clauses (i) through (xi) of this Section 7.03, the Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact (which appointment being coupled with an interest and is irrevocable while any of the Obligations remain unpaid, with power of substitution), in the name of the Administrative Agent or Sun-Exin the name of the Borrower or otherwise, for the use and benefit of the Administrative Agent (for the benefit of the Secured Parties), but at the cost and expense of the Borrower and, except as the case may beprohibited by Applicable Law, without further delay, notice to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementBorrower.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Amended and Restated Revolving Credit and Security Agreement (Lendbuzz Inc.), Revolving Credit and Security Agreement (Lendbuzz Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Rights and Remedies. 33.1 Upon the occurrence and during the continuance of an Event of Default pursuant to Sections 11.7 or 11.8, all Obligations shall be immediately due and payable and this Agreement and all Commitments of Lender shall be deemed terminated. Upon the occurrence of any other Event of Default Solar Cell Ownernot specified in the preceding sentence, and at any time thereafter during the continuation of such Event of Default, at Lender’s option, all Obligations shall be immediately due and payable and Lender shall have the right to terminate this Agreement and to terminate the Commitments of Lender to make Advances. Upon the occurrence and during the continuance of any Event of Default, and during its continuation. Lender shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted under the Credit Documents and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Lender may enter any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Lender may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Lender may deem advisable and Lender may require Loan Parties to make the Collateral available to Lender at a convenient place. With or without having the Collateral at the time or place of sale. Lender may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Lender may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a 15^30 customarily sold on a recognized market. Lender shall be distinctgive Loan Parties reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Lender, or deprive Solar Cell Owner of any other purchaser at any such sale thereafter, shall hold the Collateral sold absolutely free from any claim or right or remedy allowed it of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by law:
each Loan Party. In cormection with the exercise of the foregoing remedies. Lender is granted permission to use all of each Loan Party’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (ia) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law Inventory for the specific performance purpose of any covenant or agreement contained herein, or disposing of such Inventory and (b) Equipment for the enforcement purpose of any other appropriate legal or equitable remedy, including recovery completing the manufacture of all moneys due or to become due from Sununfinished goods. - 66 -Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Credit Agreement (Tecogen Inc.), Credit Agreement (Tecogen Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence and continuation of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s or Guarantor’s premises or other premises without legal process and without incurring liability to any Borrower or Guarantor therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers and Guarantors to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, as part of one or more going out of business sales in Agent’s own right or by one or more agents and contractors, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, all as Agent may elect. Agent and any agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be distinct, separate the sole property of Agent or such agent or contractor and cumulative and shall not operate to exclude or deprive Solar Cell Owner none of any Borrower, any Guarantor or any Person claiming under or in right of any Borrower or any Guarantor shall have any interest therein. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers and Guarantors reasonable notification of the sale or sales described in the foregoing provisions of this clause (a), it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales (or, in the case of Collateral of any Canadian Loan Party, at least fifteen (15) days) is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower and each Guarantor. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty- and rent-free, nonexclusive license and Agent is granted permission to use all of each Borrower’s and each Guarantor’s (a) Intellectual Property which is used or remedy allowed useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment, Real Property and other assets for the purpose of completing the manufacture of unfinished goods and otherwise exercising its remedies hereunder and under the Other Documents. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers and Guarantors shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower and each Guarantor acknowledges and agrees that it by law:
is not commercially unreasonable for Agent: (i) Majority Owners may terminate this Cell Owner Agreement to fail to incur expenses reasonably deemed significant by providing written notice of termination Agent to Sun-Ex, prepare Collateral for disposition or otherwise to complete raw material or work in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
process into finished goods or other finished products for disposition; (ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by a suit other law, to fail to obtain governmental or suits in equity or at law third party consents for the specific performance collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower or any Guarantor, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any covenant or agreement contained herein, or for of the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any Collateral. Without duplication of the provisions of Section 11.4, each Borrower and each Guarantor acknowledges that the purpose of this Cell Owner Agreement;Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights to any Borrower or any Guarantor or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(iiic) Majority Owners Upon the occurrence and during the continuation of an Event of Default, Agent may apply seek the appointment of a receiver, receiver-manager, interim receiver, custodian, trustee or liquidator (each a “Receiver”) under the laws of Canada or any security deposit province or territory thereof to take possession of all or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the termsCollateral of any Canadian Loan Party or to operate the same and, covenants to the maximum extent permitted by Applicable Law, may seek the appointment of such a Receiver without the requirement of prior notice or conditions a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed an agent of this Cell Owner Agreement the applicable Canadian Loan Party and not Agent or any Lender, and Agent and Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sun-Ex any such Receiver, his/her authorized agents or Solar Cell Owner) employees. Subject to the provisions of the instrument appointing such Receiver, such Receiver shall have the power to take possession of Collateral of the applicable Canadian Loan Parties, to preserve Collateral of such Canadian Loan Parties or its value, to carry on or concur in carrying on all or any part of the business of such Canadian Loan Parties and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral of such Canadian Loan Parties. To facilitate the foregoing powers, any such Receiver may, at any time and without prior notice, enter upon, use and occupy all premises owned or occupied by the applicable Canadian Loan Parties wherein Collateral of such Canadian Loan Parties may be situated, maintain Collateral of such Loan Parties upon such premises and use Collateral of such Canadian Loan Parties directly in carrying on the Canadian Loan Parties’ business or as security for loans or advances to enable such Receiver to carry on such Canadian Loan Parties’ business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her appointment shall be deemed received in trust for and paid over to continue if Agent. Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and so long as Solar Cell Owner powers of Agent and the Lenders. Agent may, either directly or Sun-Exthrough its nominees, as exercise any or all powers and rights given to a Receiver by virtue of the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying foregoing provisions of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementSection.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Build-a-Bear Workshop Inc), Revolving Credit and Security Agreement (Build a Bear Workshop Inc)
Rights and Remedies. 33.1 Upon the occurrence of: (i) an Event of Default pursuant to Section 10.1(e), all Obligations shall be immediately due and payable, (ii) any of the other Events of Default and at any time thereafter during which such other Event of Default is continuing (and during which time such other Event of Default has not been, to the extent it is capable of being, cured), at the direction of the Collateral Agent all Obligations shall be immediately due and payable and the Required Note Purchasers shall have the right to terminate this Agreement. Upon the occurrence and during the continuation of any Event of Default, the Collateral Agent (at the direction of the Required Note Purchasers) shall have the right to exercise any and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process and/or to make a claim for payment under the CP Insurance Policy. The Collateral Agent or its designated third party may enter any of any Obligor’s premises or other premises without legal process and, except as otherwise provided herein, without incurring liability to any Obligor therefor, and the Collateral Agent or its designated third party may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as the Required Note Purchasers or the Collateral Agent may deem advisable and the Collateral Agent or its designated third party may require the Obligors to make the Collateral available to the Collateral Agent at a convenient place. With or without having the Collateral at the time or place of sale, the Collateral Agent or its designated third party may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as the Required Note Purchasers or the Collateral Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Collateral Agent or its designated third party shall give the Obligors reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Issuer at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale the Collateral Agent (on behalf of the Note Purchasers) may bid (including credit bid) for and become the purchaser, and the Collateral Agent (on behalf of the Note Purchasers) or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Obligor. Upon payment of a claim in full to the Note Purchasers pursuant to the CP Insurance Policy, all rights associated with this Agreement and all Other Documents, including all legal and beneficial title to the Collateral, and all rights associated with such legal and beneficial title, will automatically transfer from the Note Purchasers to the insurer(s) identified in the CP Insurance Policy with the date of transfer of such rights and title being the date of settlement of such claim. Notwithstanding anything to the contrary in this Agreement or any Note Document, it is understood and agreed that if the Notes are accelerated or otherwise become due prior to the Maturity Date, including as a result of any Event of Default Solar Cell Owner, shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in of Section 3210.1(e) (including the acceleration of claims by operation of law), if any, which shall continue to run upon such cessation or removal. However, the Applicable Premium that would have been payable if the Force Majeure event causes Notes were optionally prepaid pursuant to Section 2.6(a) on such date of acceleration will also automatically be due and payable and shall constitute part of the Obligations with respect to the Notes, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a delay reasonable calculation of each Note Purchaser’s lost profits as a result thereof. Any such Applicable Premium payable shall be presumed to be the liquidated damages sustained by each Note Purchaser as the result of the early prepayment and each of the Obligors agrees that it is reasonable under the circumstances currently existing. EACH OF THE OBLIGORS EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING AMOUNTS IN CONNECTION WITH ANY SUCH ACCELERATION, ANY RESCISSION OF SUCH ACCELERATION OR THE COMMENCEMENT OF ANY PROCEEDING UNDER DEBTOR RELIEF LAWS. Each of the Obligors expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Applicable Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Note Purchasers and the Obligors giving specific consideration in this transaction for more such agreement to pay such Applicable Premium; and (D) the Obligors shall be estopped hereafter from claiming differently than one hundred eighty (180) days, Majority Owners may terminate as agreed to in this Cell Owner paragraph. Each of the Obligors expressly acknowledges that its agreement to pay such Applicable Premium to the Note Purchasers as herein described is a material inducement to the Note Purchasers to enter into this Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Note Purchase and Guaranty Agreement (Next.e.GO B.V.), Note Purchase and Guaranty Agreement (Athena Consumer Acquisition Corp.)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition (or foreign equivalent) against any Loan Party in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Foreign Security Agreements, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to Loan Parties therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Loan Party’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with the collection of each Loan Party’s Receivables. The proceeds realized from the sale of any Collateral shall be distinctapplied in accordance with Section 11.5. If any deficiency shall arise, separate Loan Parties shall remain liable to Agent and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal RequirementsLenders therefor.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.), Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Obligor in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Obligor. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of Obligor's premises or other premises without legal process and without incurring liability to any Obligor therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Obligors to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Obligors reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Obligors at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Obligor. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of Obligations and any fees payable under this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) , third, to the principal of the Obligations. If this Cell Owner Agreement any deficiency shall arise, Obligors shall remain liable to Agent and Lenders therefor. The Agent shall return any surplus to the Obligors, subject to any duty imposed by law upon the Agent and/or Lenders, including but not limited to any duty owed to the holder of a subordinated security interest in any Collateral. Each Obligor hereby assigns, transfers and conveys to the Agent, for the benefit of the Lenders, effective upon the occurrence of any Event of Default hereunder, the right and license to use all Intellectual Property, Equipment and General Intangibles owned or used by such Obligor to the extent necessary to enable the Agent to dispose of the Inventory, for the purpose of completing the manufacturing of unfinished goods, collecting Receivables or to otherwise liquidate, transfer or realize on the Collateral. Such right and license is determined granted free of charge, without requirement of any monetary payment whatsoever to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed made to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed any Obligor by the Solar Cell Owners Agent. The Obligors shall be Project Expenses cooperate with all reasonable directions of and may be paid from execute and deliver all documentation reasonably requested by the Consumer RentalsAgent for the purpose of implementing the foregoing provisions.
Appears in 2 contracts
Sources: Revolving Credit, Capital Expenditure Line and Security Agreement (Philipp Brothers Chemicals Inc), Revolving Credit, Acquisition Term Loan and Security Agreement (Philipp Brothers Chemicals Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Valuevision Media Inc), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter, at the option of Required Lenders, all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (i) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (ii) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent: (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of: (i) an Event of Default pursuant to Section 10.7 all Obligations, including any Prepayment Premium applicable thereto, shall be immediately due and payable and this Agreement and the obligation of the Purchasers to purchase any further Notes shall be deemed terminated; (ii) any of the other Events of Default, at the option of the Required Purchasers, all Obligations, including any Prepayment Premium applicable thereto, shall be immediately due and payable and the Purchasers shall have the right to terminate this Agreement and to terminate the obligation of the Purchasers to purchase any further Notes; and (iii) without limiting Section 8.2 hereof, any Default under Section 10.7(f) hereof arising from a filing of a petition against any Note Party in any involuntary case under any state or federal bankruptcy laws, the obligation of the Purchasers to purchase Notes hereunder shall be suspended until such time as such involuntary petition shall be dismissed or an Event of Default under Section 10.7 shall occur. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent and the Purchasers shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the other Note Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process; provided, that the Agent or the Required Purchasers must provide at least five (5) Business Days’ prior written notice to the Issuer after an Event of Default has occurred and is continuing before exercising any remedies with respect to the Equity Interests of the Note Parties (including, without limitation, voting rights). Upon the occurrence and during the continuance of any Event of Default, Agent and the Purchasers may enter any of any Note Party’s premises or other premises without legal process and without incurring liability to any Note Party therefor, and Agent or the Purchasers may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent or Purchaser may deem advisable and Agent or the Required Purchasers may require the Note Parties to make the Collateral available to Agent at a convenient place. Upon the occurrence and during the continuance of any Event of Default, with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Note Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Issuer at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Purchaser may bid for and become the purchaser, and Agent, any Purchaser or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Note Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, at such time as Agent shall be lawfully entitled to exercise such remedies, and for no other purpose. Agent and the Purchasers are granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent and the Purchasers are granted permission to use all of each Note Party’s (a) trademarks, trade styles, tradenames, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.6 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Note Parties shall remain liable to Agent and Purchasers therefor.
(b) To the extent that Applicable Law imposes duties on Agent or the Purchasers to exercise remedies in a commercially reasonable manner, each Note Party acknowledges and agrees that it is not commercially unreasonable for Agent or any Purchaser: (i) to fail to incur expenses reasonably deemed significant by Agent or such Purchaser to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Note Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent or such Purchaser, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent or such Purchaser in the collection or disposition of any of the Collateral. Each Note Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent or a Purchaser would not be commercially unreasonable in Agent’s or Purchaser’s exercise of remedies against the Collateral and that other actions or omissions by Agent or Purchaser shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Note Party or to impose any duties on Agent or a Purchaser that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Note Purchase Agreement (Keane Group, Inc.), Note Purchase Agreement (Keane Group, Inc.)
Rights and Remedies. 33.1 Upon and after the occurrence of an Event of Default pursuant to Sections 11.7, 11.8, 11.9 or 11.20, all Obligations shall be immediately due and payable and this Agreement and all Commitments of Lender shall be deemed terminated. Upon the occurrence of any other Event of Default not specified in the preceding sentence, and at any time thereafter during the continuation of such Event of Default, at Lender's option, all Obligations shall be immediately due and payable and Lender shall have the right to terminate this Agreement and to terminate the Commitments of Lender to make Advances. Upon and after the occurrence of any Event of Default Solar Cell OwnerDefault, and during its continuation, Lender shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Lender may enter any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Lender may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Lender may deem advisable and Lender may require Borrowers to make the Collateral available to Lender at a convenient place. With or without having the Collateral at the time or place of sale, Lender may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Lender may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender shall be distinctgive Borrowers reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to Borrowers at least five (5) Business Days prior to such sale or sales is reasonable notification. At any public sale Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Lender, or deprive Solar Cell Owner of any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right or remedy allowed it of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by law:
each Borrower. In connection with the exercise of the foregoing remedies, Lender is granted permission to use all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (ia) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law Inventory for the specific performance purpose of any covenant or agreement contained herein, or disposing of such Inventory and (b) Equipment for the enforcement purpose of any other appropriate legal or equitable remedy, including recovery completing the manufacture of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirementsunfinished goods.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Credit and Security Agreement (Omni Energy Services Corp), Credit and Security Agreement (Omni Energy Services Corp)
Rights and Remedies. 33.1 Upon the occurrence of (a) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (b) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent in its discretion shall have the right to exercise, or, at the written direction of Required Lenders, shall exercise, any and all other rights and remedies hereinafter set forthprovided for herein, under the UCC and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Lenders at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall be distinctgive Borrowers reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to Borrowers at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Agent, any Lender or deprive Solar Cell Owner of any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right or remedy allowed it of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by law:
each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission, without charge, to use all of Borrowers' trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (i) Majority Owners may terminate this Cell Owner Agreement by providing written notice Inventory for the purpose of termination to Sun-Ex, in which event the Term shall end, disposing of such Inventory and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.)
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (E Com Ventures Inc), Revolving Credit and Security Agreement (E Com Ventures Inc)
Rights and Remedies. 33.1 Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances shall be deemed terminated, or (ii) the other Events of Default specified in Article X, and at any time thereafter (such Event of Default not having previously been waived in accordance with this Agreement), Agent may (but shall not be obligated to) (and at the direction of the Required Lenders shall) upon written notice to the Loan Parties, declare all of the Obligations immediately due and payable and terminate this Agreement and terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over the Loan Parties. Upon the occurrence and continuation of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the UCC and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. In furtherance of such exercise Agent may enter any Loan Party’s premises or other premises without legal process and without incurring liability to such Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require such Loan Party to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall be distinctgive the Loan Parties reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Agent, any Lender or deprive Solar Cell Owner of any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedywhatsoever kind, including recovery any equity of all moneys due redemption and such right and equity are hereby expressly waived and released by each Loan Party. Agent may specifically disclaim any warranties of title or to become due from Sun-Ex under the like at any sale of Collateral. In connection with the exercise of the provisions foregoing remedies, Agent is granted permission to use without charge all of this Cell Owner Agreement;
(iii) Majority Owners may apply each Loan Party’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with the foregoing; provided, that with respect to any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be Event of Default resulting solely from non-compliance with a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods financial covenant set forth in Section 326.8, if anyneither Agent nor the Required Lenders may exercise the foregoing remedies in this Section 11.1 until the date that is the earlier of (i) the Anticipated Cure Deadline, which shall continue to run upon such cessation or removal. However, if and (ii) the Force Majeure event causes a delay date that Agent receives notice that the Parent will not exercise the Cure Right for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementthe applicable fiscal quarter.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Loan and Security Agreement (Marketwise, Inc.), Loan and Security Agreement (Marketwise, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time [PHI Group] Revolving Credit, Term Loan and Security Agreement as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose [PHI Group] Revolving Credit, Term Loan and Security Agreement of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Rights and Remedies. 33.1 Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances shall be deemed terminated, or (ii) the other Events of Default specified in Article X, and at any time thereafter (such Event of Default not having previously been waived in accordance with this Agreement), Agent may (but shall not be obligated to) (and at the direction of the Required Lenders shall) upon written notice to the Loan Parties, declare all of the Obligations immediately due and payable and terminate this Agreement and terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over the Loan Parties. Upon the occurrence and continuation of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the UCC and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. In furtherance of such exercise Agent may enter any Loan Party’s premises or other premises without legal process and without incurring liability to such Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require such Loan Party to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall be distinctgive the Loan Parties reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Agent, any Lender or deprive Solar Cell Owner of any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. Agent may specifically disclaim any warranties of title or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice the like at any sale of termination Collateral. In connection with and solely during the duration of the exercise of the foregoing remedies, Agent is granted permission to Sun-Exuse without charge all of each Loan Party’s trademarks, in which event the Term shall endtrade styles, trade names, patents, patent applications, and all right, title and interest of Sun-Ex hereunder shall expire on other proprietary rights which are used in connection with the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirementsforegoing. 11.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Loan and Security Agreement (Veeco Instruments Inc), Loan and Security Agreement (Veeco Instruments Inc)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of ------------------- Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and the Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, shall have Agent may, and at the direction of the Required Lenders shall, exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use (a) all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods without cost to Agent. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any defaultObligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on each Borrower shall remain liable to Agent and the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Styrochem International Inc), Revolving Credit and Security Agreement (Styrochem International LTD)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter during the continuance of such Event of Default, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Section 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. At any time following the occurrence and during the continuance of an Event of Default, Agent shall have the right to send notice of the assignment of, and Agent's security interest in and Lien on, the Receivables to any and all Customers or any third party holding or otherwise concerned with any of the Collateral. At any time after the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to collect the Receivables, take possession of the Collateral, or both. Agent's actual out-of-pocket collection expenses may be charged to Borrowers' Account and added to the Obligations. To the extent allowed by Applicable Law, Agent may enter any of any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory or Equipment (including without limitation, Fleet Assets), Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent (including its designees in connection with such exercise) is granted permission to use all of each Borrower's (a) Intellectual Property which is used or useful in connection with Inventory or Equipment (including, without limitation, any Fleet Assets) for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory or Equipment (including, without limitation, any Fleet Assets) and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP), Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 hereof (other than Section 10.7(g) hereof), all Obligations shall be immediately due and payable (including, without limitation, any applicable fee(s) or other amounts payable under the Fee Letter in connection with or with respect to such acceleration) and this Agreement and the Commitments shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable (including, without limitation, any applicable fee(s) or other amounts payable under the Fee Letter in connection with or with respect to such acceleration) and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the Commitments; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(g) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual non-revocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The Net Cash Proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Non-cash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing set forth in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dasan Zhone Solutions Inc), Export Import Revolving Credit, Guaranty and Security Agreement (Dasan Zhone Solutions Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of any Event of Default Solar Cell Ownerand at any time thereafter, in addition to all other rights and remedies of Lender, whether provided under the Uniform Commercial Code or other applicable law, this Agreement, the Guarantee, the other Financing Agreements or otherwise, Lender shall have the following rights and remedies hereinafter set forthwhich may be exercised, which shall be distinctin its discretion, separate at any time or times, with or without judicial process, with or without the assistance of others and cumulative and shall not operate without notice to exclude or deprive Solar Cell Owner of any other right consent by Guarantor except as such notice or remedy allowed it consent or judicial process is expressly provided for hereunder or required by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, enter upon any premises on or in which event any of the Term shall endCollateral may be located and, and all rightwithout resistance or interference by Guarantor, title and interest take possession of Sun-Ex hereunder shall expire on the date stated in such noticeCollateral;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement complete processing, manufacturing and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery repair of all moneys due or to become due from Sun-Ex under any portion of the provisions of this Cell Owner AgreementCollateral;
(iii) Majority Owners require Guarantor, at its expense, to assemble and make available to Lender any part or all of the Collateral at any place and time designated by Lender;
(iv) remove any or all of the Collateral from any premises on or in which the same may be located, for the purpose of effecting the sale, foreclosure or other disposition thereof or for any other lawful purpose;
(v) appropriate, set off and apply to the payment of any security deposit or all of the Obligations, any portion thereof or all Collateral, in such manner as Lender shall in Lender's sole discretion determine, and enforce payment of any Collateral, settle, compromise or release in whole or in part any amounts owing on the Collateral, prosecute any action, suit or proceeding with respect to cure the Collateral, extend the time of payment of any defaultand all Collateral, make allowances and adjustments with respect thereto, and issue credits in Lender's or Guarantor's name; and
(ivvi) If this Cell Owner Agreement sell, assign, foreclose or otherwise dispose of and deliver any or all of the Collateral, at public or private sale, at broker's board, for cash, upon credit or otherwise, at Lender's option and discretion, on or in any of Guarantor's premises or premises of any other person, and Lender may bid or become purchaser at any such sale, if public, free from any right of redemption which is determined hereby expressly waived.
(b) Notwithstanding anything to the contrary contained herein, Lender will not levy or file a lis penden upon the Real Property for a period of ninety (90) days after Lender has commenced the exercise of its remedies with respect to the assets of Borrower subject to the security interests and liens of Lender.
(c) In the event Lender seeks to take possession of all or any portion of the Collateral by judicial process, Guarantor irrevocably waives: (i) the posting of any bond, surety or security with respect thereto which might otherwise be required, (ii) any demand for possession prior to the commencement of any suit or action to recover the Collateral, and (iii) any requirement that Lender retain possession and not dispose of any Collateral until after trial or final judgment.
(d) Guarantor agrees that the giving of five (5) days' notice by Lender to Guarantor's address set forth below, designating the place and time of any public sale or of the time after which any private sale or other intended disposition of the Collateral is to be a secured credit facilitymade, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if be reasonable notice thereof and so long as Solar Cell Owner Guarantor waives any other notice with respect thereto.
(e) The net cash proceeds resulting from the exercise of any of the foregoing rights or Sun-Ex, as the case may be, remedies shall be delayed applied by Lender to the payment of the Obligations in such order as Lender may elect, and Guarantor shall remain liable to Lender for any deficiency. Without limiting the generality of the foregoing, if Lender enters into any credit transaction, directly or indirectly, in connection with the disposition of any Collateral, Lender shall have the option, at any time, in its sole discretion, to reduce the Obligations by the principal amount of such credit transaction or to defer the reduction thereof until actual receipt by Lender of cash or other immediately available funds in connection therewith.
(f) The enumeration of the foregoing rights and remedies is not intended to be exclusive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the Uniform Commercial Code or other applicable law. Lender shall have the right, in Lender's sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Collateral is to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others. Lender may, at any time or times, proceed directly against Guarantor or any other person liable on the Obligations to enforce payment of the Obligations and shall not be required to take any action of any kind to preserve, collect or protect Lender's or Guarantor's rights in the Collateral.
(g) Guarantor waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or prevented from remedying evidencing any of the Obligations or the Collateral and any and all notices or demands whatsoever (except as expressly provided herein).
(h) No act, failure or delay by Lender shall constitute a waiver of any of Lender's rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default hereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same due to Force Majeure; but if and when the occurrence provision, breach, default, right or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes remedy on a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementfuture occasion.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Guarantee Agreement (Pny Technologies Inc), Guarantee Agreement (Pny Technologies Inc)
Rights and Remedies. 33.1 Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 hereof, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of the Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances, and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, shall have Agent shall, at the request of the Required Lenders, or may, with the consent of the Required Lenders, (a) exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the Uniform Commercial Code and at law or equity generally, separate including, without limitation, the right to foreclose the security interests granted herein and cumulative to realize upon any Collateral by any available judicial procedure and/or to take possession of and shall not operate sell any or all of the Collateral with or without judicial process; (b) enter any of Borrowers' premises or other premises without legal process and without incurring liability to exclude Borrowers therefor, and Agent may thereupon, or deprive Solar Cell Owner at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a place convenient to Agent; (c) with or without having the Collateral at the time or place of sale, sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect; and/or (d) withdraw all monies, securities, and instruments in the Blocked Account (or in any other right account under Agent's or remedy allowed it by law:
(iany Lender's control) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination for application to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or Obligations as set forth below. Except as to become due from Sun-Ex under any that part of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit Collateral which is perishable or any portion thereof threatens to cure any default; and
(iv) If this Cell Owner Agreement decline speedily in value or is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement type customarily sold on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32a recognized market, if any, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least seven (7) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind (other than, in the case of Agent, the duty to account for surplus proceeds), including any equity of redemption and such right and equity are hereby expressly waived and released by Borrowers. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of Borrowers' trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. Afer the occurrence and during the continuance of an Event of Default, the proceeds realized from the sale or disposition of any Collateral and all payments in respect of any Obligations shall continue be applied as follows: first, to run the reasonable costs, expenses and attorneys' fees and expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral and the Guarantor Collateral; second, to interest due upon such cessation or removal. Howeverany of the Obligations and any fees payable under this Agreement and the Other Documents; third, to the principal of the Obligations; fourth, to the payment of any other Obligations then remaining unpaid; and fifth, the surplus, if the Force Majeure event causes a delay for more than one hundred eighty (180) daysany, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and paid to Borrowers or to whomsoever may be paid from lawfully entitled to receive the Consumer Rentalssame . If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Richton International Corp), Revolving Credit, Term Loan and Security Agreement (Richton International Corp)
Rights and Remedies. 33.1 Upon (a) Agent may exercise in respect of the occurrence of any Event of Default Solar Cell OwnerCollateral, shall have the in addition to other rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exprovided for herein, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained hereinother Loan Documents, or for otherwise available to it, all the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party on default under Legal Requirements.
33.2 No default in the performance Code or any other applicable law. Without limiting the generality of the termsforegoing, covenants Grantor expressly agrees that, in any such event, Agent without demand of performance or conditions other demand, advertisement or notice of this Cell Owner Agreement on any kind (except a 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 Code or any other applicable law), may enter onto any premises of Grantor and take immediate possession of all or any portion of the Collateral and (i) require Grantor to, and Grantor hereby agrees that it will at its own expense and upon request of Agent forthwith, assemble all or part of Sun-Ex the Collateral as directed by Agent and make it available to Agent at one or Solar Cell Ownermore locations where Grantor regularly maintains such Collateral, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Agent's offices or elsewhere, for cash, on credit, and upon such other terms as Agent may deem commercially reasonable. Grantor agrees that, to the extent notice of sale shall be deemed required by law, at least 10 days notice to continue if Grantor of the time and so long as Solar Cell Owner place of any public sale or Sunthe time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable "authenticated notification of disposition" within the meaning of Section 9-Ex611 of the Code. Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may besale may, without further delaynotice (except as may be required by law), be made at the time and place to which it was so adjourned.
(b) Agent may, in its sole discretion, from time to time, at the expense of Grantor make all such expenditures for the payment of taxes, insurance, storage and other expenses related to the Collateral and for remarketing, maintenance, modifications, refurbishments, repairs, replacements, alterations, additions and improvements to and of the Collateral, as it may deem proper. In each such case, Agent shall have the right to maintain, use, operate, store, lease, control or manage the Collateral and to exercise all rights and powers of Grantor relating to the Collateral in connection therewith, as Agent shall deem appropriate, including the right to enter into any and all such agreements with respect to the maintenance, modification, refurbishment, insurance, use, operation, storage, leasing, control, management or disposition of the Collateral or any part thereof as Agent may determine; and Agent shall be entitled to collect and receive directly all tolls, rents, revenues, issues, income, products and profits of the Collateral and every part thereof. Grantor shall pay on demand, and any such tolls, rents, revenues, issues, income, products and profits may be applied to pay, all expenses incurred by Agent in connection with the foregoing and any and all other expenses of possession, use, operation, storage, leasing, control, management or disposition of the Collateral, and of all maintenance, modification, refurbishment, repairs, replacements, alterations, additions and improvements, and all payments which Agent may be required or may elect, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32make, if any, for Taxes, insurance, storage or other charges assessed against or otherwise imposed upon the exercise of any rights under any of the Loan Documents or the Collateral or any part thereof (including the employment of agents for the remarketing of the Aircraft for sale or lease, and appraisers, technicians, engineers and accountants to examine, inspect and make reports upon the properties and books and records of Grantor), and all other payments which shall continue Agent or any Lender may be required or authorized to run upon such cessation make under any provision of this Agreement, as well as just and reasonable compensation for the services of Agent, and of all Persons engaged or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementemployed by Agent.
33.3 Such expenses owed (c) Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, Grantor's labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks and advertising matter, domain names, industrial designs, other industrial or intellectual property or any property of a similar nature, whether owned by Grantor or with respect to which Grantor has rights under license, sublicense, or other agreements, as it pertains to the Solar Cell Owners Collateral, in preparing for sale, advertising for sale and selling any Collateral, and Grantor's rights under all licenses and all franchise agreements shall inure to the benefit of Agent.
(d) Any cash held by Agent as Collateral and all cash proceeds received by Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be Project Expenses applied against the Secured Obligations in the order set forth in the Credit Agreement. In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full, Grantor shall remain liable for any such deficiency.
(e) Grantor hereby acknowledges that the Secured Obligations arose out of a commercial transaction and agrees that if an Event of Default shall occur Agent shall have the right to an immediate writ of possession without notice of a hearing. Agent shall have the right to the appointment of a receiver for the properties and assets of Grantor, and Grantor hereby consents to such rights and such appointment and hereby waives any objection Grantor may be paid from have thereto or the Consumer Rentalsright to have a bond or other security posted by Agent.
Appears in 2 contracts
Sources: Security Agreement (Hawaiian Holdings Inc), Security Agreement (Hawaiian Holdings Inc)
Rights and Remedies. 33.1 Upon the occurrence of any an Event of Default Solar Cell OwnerDefault, and at any time thereafter during the continuance of such event, the Agent, at any time and from time to time thereafter:
(a) may cause any or all of the Collateral to be registered in its own name or in the name of any nominee or nominees;
(b) shall be entitled to collect and receive all interest, dividends, payments and other distributions of any character, declared or paid on any of the Collateral;
(c) may vote any or all shares of any of the Securities and give all consents, waivers, and ratifications in respect thereof and otherwise act with respect thereto as though it was the absolute owner thereof;
(d) may sell, assign, transfer and deliver at any time the whole, or from time to time any part, of the Securities or any rights or interests therein, at public or private sale or in any other manner, at such prices on such terms as the Agent may deem to be in its best interests, and either for cash, on credit, or for future delivery, at the option of the Agent, upon ten (10) days written notice, which the Pledgor agrees is commercially reasonable, addressed to the Pledgor at its last address on file with the Agent. Such notice, in the case of a public sale, shall state the time and place for such sale, and, in the case of sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Securities, or any 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 at such place or places as the Agent may fix and shall so state in the notice of such sale. At any such sale, the Securities, or any portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Agent may determine. The Agent and/or the other Lenders shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Securities for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Agent shall have the rights right to assign, transfer, and remedies hereinafter set forthdeliver to the purchaser or purchasers thereof the Securities so sold. The Pledgor will cooperate with the Agent so that a sale of the Securities does not violate the Securities Act of 1933, which as then in effect, and the rules and regulations thereunder. Each such purchaser at any sale shall be distincthold the property sold absolutely free from any claim or right on the part of the Pledgor and the Pledgor waives and releases, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it the extent permitted by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice , any right of termination to Sun-Exequity of redemption of the Securities, in stay or appraisal which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity Pledgor now has or at law for any time in the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex future may have under any rule of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit law or any portion thereof to cure any defaultstatute, now existing or hereafter enacted; and
(ive) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise shall otherwise have all the rights and remedies of a secured party with respect to the Collateral as are provided under Legal Requirements.
33.2 No default the Uniform Commercial Code in force in Connecticut on the performance date hereof and as may be amended from time to time, or under other applicable law, and the Agent and each of the terms, covenants other Lenders may set off or conditions otherwise apply the Collateral against the payment of this Cell Owner Agreement on any of the part Secured Obligations and shall have the right to take such other actions as are consistent with the power of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods attorney set forth in Section 323 hereof. As an alternative to exercising the power of sale conferred upon it herein, if anythe Agent may proceed by suits at law or in equity, which or both, to foreclose this Agreement and to sell the Securities, or any portion thereof, pursuant to a judgment or decree of a court or courts of competent jurisdiction provided the Agent provides the Pledgor with 10 days prior written notice and the right to participate in such sale. If any of the Securities or any rights or interests therein shall continue to run upon be disposed of at a private sale, the Agent and the other Lenders shall be relieved from all liability or claims for inadequacy of price. At any such cessation sale the Agent and/or any of the other Lenders may purchase the whole or removalany part of the Securities or any rights or interests therein so sold. HoweverIf any of the Securities or any rights or interests therein shall be sold on credit or for future delivery, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners Securities or rights or interests so sold may terminate this Cell Owner Agreement.
33.3 Such expenses owed be retained by the Solar Cell Owners Agent until the selling price thereof shall be Project Expenses and may be paid from by the Consumer Rentalspurchaser.
Appears in 2 contracts
Sources: Stock Pledge Agreement (Higher One Holdings, Inc.), Stock Pledge Agreement (Higher One Holdings, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Ownerand for so long as such Event of Default continues to exist, unless such Event of Default is subsequently waived in writing by Agent, Agent shall have be entitled, at the option of Agent, to exercise any or all of the following rights and remedies hereinafter set forthremedies, which shall be distinctconsecutively or simultaneously, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of in any other right or remedy allowed it by laworder:
(ia) Majority Owners Lenders may make one (1) or more further advances of Loan proceeds, without liability to make any subsequent advances thereof.
(b) Lenders may suspend their obligation to make advances under this Agreement, without notice to Borrower.
(c) Lenders may terminate their obligation to make advances under this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endAgreement, and all rightAgent may declare the entire unpaid principal balance of the advances made under this Agreement to be immediately due and payable, title together with accrued and unpaid interest of Sun-Ex hereunder shall expire on the date stated in such notice;advances, without notice to or demand on Borrower.
(iid) Majority Owners Agent may enforce exercise any or all remedies specified herein and in the provisions other Loan Documents, including (without limiting the generality of this Cell Owner Agreement and the foregoing) the right to foreclose the Deed of Trust, and/or any other remedies which it may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits have therefor at law, in equity or at law for under statute.
(e) Agent may cure the specific performance Event of any covenant or agreement contained hereinDefault on behalf of Borrower, or for and, in doing so, may enter upon the enforcement Property, and may expend such sums as it may deem desirable in Agent’s good faith judgment (provided that such amount shall not exceed $2,000,000 in the aggregate with the prior written consent of any other appropriate legal or equitable remedythe Majority Lenders), including recovery attorneys’ fees, all of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) which shall be deemed to continue if and so long as Solar Cell Owner or Sun-Exbe advances hereunder, as even though causing the case may beLoan to exceed the face amount of the Note, shall be delayed in or prevented from remedying bear interest at the same due to Force Majeure; but if Default Rate and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementpayable by Borrower on demand.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Construction Loan Agreement (Saul Centers Inc), Construction Loan Agreement (Saul Centers Inc)
Rights and Remedies. 33.1 Upon the occurrence of (a) an Event of Default pursuant to Sections 10(f) or (h) all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (b) any of the other Events of Default and at any time thereafter (such default not having previously been cured), and (c) a filing of a petition against Borrower or any Guarantor in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over Borrower or the applicable Guarantor and in each case at the option of the Agent in its discretion or upon written directions to do so from the Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence and the continuance of any Event of Default and upon ten (10) days prior written notice from the Agent to the Borrower (except with respect to the Agent’s and Lenders’ right of setoff hereunder the exercise of which may be at any time after a Default and without any notice to the Borrower), Agent shall have the right to exercise any and all other rights and remedies provided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. During the continuance of an Event of Default and upon ten (10) days written notice by the Agent to the Borrower, Agent may enter any of Borrower’s or any Guarantor’s premises or other premises without legal process and without incurring liability to Borrower or the applicable Subsidiary therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower or the applicable Guarantor to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as is commercially reasonable. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower and each Guarantor. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of Borrower’s and each Guarantor’s (a) trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be applied in the order set forth in Section 11.5 hereof. If any deficiency shall arise, Borrower and each of its Subsidiaries shall remain liable to Agent and Lenders therefor. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate right to exclude appoint a receiver on behalf of Borrower or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirementsapplicable Subsidiary.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Credit and Security Agreement (Pc Connection Inc), Credit and Security Agreement (Pc Connection Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, [PHI Group] Revolving Credit, Term Loan and Security Agreement take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any [PHI Group] Revolving Credit, Term Loan and Security Agreement of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.6, all Obligations shall be immediately due and payable and this Agreement and the obligation of the Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), (x) at the option of Majority Lenders all Obligations shall be immediately due and payable, (y) Majority Lenders shall have the right to terminate this Agreement, and (z) the Required Revolving Lenders shall have the right to terminate the obligation of Revolving Lenders to make Revolving Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state, provincial or federal bankruptcy laws, the obligation of the Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the UCC, separate any applicable personal property security legislation and cumulative and shall not operate to exclude at law or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exequity generally, in which event the Term shall endincluding, and all rightwithout limitation, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 324.4 and the right to foreclose the security interests granted herein, if anyto realize upon any Collateral by any available judicial procedure, which shall continue to run take possession of and sell any or all of the Collateral with or without judicial process, and to deliver the Springing Control Notice. Agent may enter any Loan Party's premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such cessation terms, either for cash, credit or removalfuture delivery, as Agent may elect. HoweverExcept as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, if Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the Force Majeure event causes a delay purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. Agent may specifically disclaim any warranties of title or the like at any sale of Collateral. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Loan Party's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for more than one hundred eighty the purpose of disposing of such Inventory and (180b) days, Majority Owners may terminate this Cell Owner AgreementEquipment for the purpose of completing the manufacture of unfinished goods.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Loan and Security Agreement (Bucyrus International Inc), Loan and Security Agreement (Bucyrus International Inc)
Rights and Remedies. 33.1 Upon (a) In addition to the acceleration provisions set forth in Article VIII above, upon the occurrence and continuation of an Event of Default, Agent shall have the right to (and at the request of Requisite Lenders, shall) exercise any and all rights, options and remedies provided for in any Loan Document, under the UCC or at law or in equity, including, without limitation, the right to (i) apply any property of Borrower held by Agent, for the benefit of Lenders, or Lenders to reduce the Obligations, (ii) foreclose the Liens created under the Security Documents, (iii) realize upon, take possession of and/or sell any Collateral or securities pledged with or without judicial process, (iv) exercise all rights and powers with respect to the Collateral as Borrower might exercise, (v) collect and send notices regarding the Collateral, with or without judicial process, (vi) by its own means or with judicial assistance, enter any premises at which Collateral and/or pledged securities are located, or render any of the foregoing unusable or dispose of the Collateral and/or pledged securities on such premises without any liability for rent, storage, utilities, or other sums, and no Borrower shall resist or interfere with such action, (vii) at Borrower's expense, require that all or any part of the Collateral be assembled and made available to Agent at any place designated by Agent, (viii) reduce or otherwise change the Facility Cap and/or the Maximum Loan Amount, and/or (ix) relinquish or abandon any Collateral or securities pledged or any Lien thereon. Notwithstanding any provision of any Loan Document, Agent, in its sole discretion, shall have the right, at any time that Borrower fails to do so, and from time to time, without prior notice, to: (i) obtain insurance covering any of the Collateral to the extent required hereunder; (ii) pay for the performance of any of Obligations; (iii) discharge taxes or Liens on any of the Collateral that are in violation of any Loan document unless Borrower is in good faith with due diligence by appropriate proceedings contesting those items; and (iv) pay for the maintenance and preservation of the Collateral. Such expenses and advances shall be added to the Obligations until reimbursed to Agent and shall be secured by the Collateral, and such payments by Agent shall not be construed as a waiver by Agent or Lenders of any Event of Default Solar Cell Owner, shall have or any other rights or remedies of Agent and Lenders.
(b) Borrower agrees that notice received by it at least ten (10) calendar days before the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner time of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained hereinintended public sale, or for the enforcement time after which any private sale or other disposition of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement Collateral is determined to be a secured credit facilitymade, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if be reasonable notice of such sale or other disposition. If permitted by applicable law, any perishable Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Agent without prior notice to Borrower. At any sale or disposition of Collateral or securities pledged, Agent may (to the extent permitted by applicable law) purchase all or any part thereof free from any right of redemption by Borrower which right is hereby waived and so long as Solar Cell Owner released. Borrower covenants and agrees not to, and not to permit or Sun-Excause any of its Subsidiaries to, as interfere with or impose any obstacle to Agent's exercise of its rights and remedies with respect to the case may beCollateral. Agent, in dealing with or disposing of the Collateral or any part thereof, shall not be delayed in required to give priority or prevented from remedying the same due preference to Force Majeure; but if and when the occurrence any item of Collateral or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, otherwise to commence the correction of such default marshal assets or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation take possession or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementsell any Collateral with judicial process.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (America Service Group Inc /De), Revolving Credit and Security Agreement (America Service Group Inc /De)
Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Owner, shall have the rights Each party to this Insurance Agreement has acknowledged and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endagreed to, and hereby confirms its acknowledgement and agreement to, the collateral sale and assignment by the Seller to the Depositor, by the Depositor to the Issuer, and the pledge by the Issuer to the Indenture Trustee, of all of its right, title and interest of Sun-Ex hereunder shall expire on in, to and under the date stated in such notice;
(ii) Majority Owners may enforce Trust Estate, and the provisions of this Cell Owner Agreement Transaction Documents and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facilityIssuer's rights, Majority Owners may exercise remedies, powers and privileges and all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance claims of the terms, covenants Issuer or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-ExDepositor, as the case may be, against the Seller, of the Issuer against the Depositor and of the Issuer against the Depositor or the Seller, under or with respect to the Transaction Documents (whether arising pursuant to the terms thereof or otherwise available at law or in equity), including without limitation (whether or not any of a Default or Event of Default under the Indenture, an Event of Default hereunder, a Servicer Termination Event, a Trigger Event or a Spread Cap Event has occurred and is
(i) the right of the Issuer at any time to enforce the Transaction Documents against the Servicer, the Depositor or the Seller and the obligations of the Servicer, the Seller and the Depositor thereunder and (ii) the right at any time to give or withhold any and all consents, requests, notices, directions, approvals, demands, extensions or waivers under or with respect to any Transaction Document or the obligations in respect of the Issuer, the Servicer, the Depositor or the Seller thereunder, all of which rights, remedies, powers, privileges and claims may, notwithstanding any provision to the contrary by any of the Transaction Documents, be exercised and/or enforced by the Indenture Trustee in lieu of and in the place and stead of the Depositor and the Issuer to the same extent as the Depositor or the Issuer would otherwise do, and except to the extent a Transaction Document provides that the Insurer shall not have such a right upon an Insurer Default that has occurred and is continuing, neither the Depositor nor the Issuer may exercise any of the foregoing rights without the prior written consent of the Insurer. Each party hereto further acknowledges and agrees that, unless an Insurer Default has occurred and is continuing, the Indenture Trustee will take or refrain from taking any action, and exercise or refrain from exercising any rights under the Transaction Documents in its capacity as Indenture Trustee pursuant to the written direction of the Insurer; provided, however, that the obligations of the Indenture Trustee to take or refrain from taking, or to exercise or refrain from exercising, any such action or rights shall not apply to routine administrative tasks required to be performed by the Indenture Trustee pursuant to the Transaction Documents and shall be delayed in limited to those actions and rights that can be exercised or prevented from remedying the same due to Force Majeure; but if and when the occurrence taken (or condition which delayed not exercised or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Extaken, as the case may be, without further delay, to commence ) in full compliance with the correction provisions of such default or to continue the Transaction Documents and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementwith applicable law.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Insurance and Indemnity Agreement (Triad Automobile Receivables Trust 2006-A), Insurance and Indemnity Agreement (Triad Automobile Receivables Trust 2005-A)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Administrative Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Administrative Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, shall have the rights and remedies hereinafter set forthAdministrative Agent may, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance direction of Required Lenders shall, exercise any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Administrative Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Administrative Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Administrative Agent may deem advisable and Administrative Agent may require Loan Parties to make the Collateral available to Administrative Agent at a convenient place. With or without having the Collateral at the time or place of sale, Administrative Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Administrative Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Administrative Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale any Agent or any Lender may bid (including credit bid) for and become the purchaser, and any Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Administrative Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Administrative Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agents and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Administrative Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Administrative Agent: (i) to fail to incur expenses reasonably deemed significant by Administrative Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Administrative Agent against risks of loss, collection or disposition of Collateral or to provide to Administrative Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Administrative Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Administrative Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Administrative Agent would not be commercially unreasonable in Administrative Agent’s exercise of remedies against the Collateral and that other actions or omissions by Administrative Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Administrative Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (A.S.V., LLC), Revolving Credit, Term Loan and Security Agreement (Manitex International, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Loans shall be deemed terminated other than, with respect to clause (f) thereof, as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Loan Party; and (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured pursuant to Section 10.23 or otherwise or waived), at the option of Required Lenders, all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Loans. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may, subject to the terms of leases and the rights of the parties thereunder, enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by the Loan Parties. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted (but only to the extent it is necessary to exercise the foregoing remedies) a royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other Intellectual Property rights (to the extent permitted by the applicable license, franchise or other governing instrument) which are reasonably used or useful in connection with Inventory for the sole purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Loan Parties, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. The Loan Parties acknowledge that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall continue not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to run upon such cessation grant any rights to any Loan Party or removal. However, if to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate absence of this Cell Owner AgreementSection 11.1(b).
33.3 Such expenses owed by the Solar Cell Owners (c) Agent’s and Lender’s rights and obligations under this Section 11.1 shall be Project Expenses and may be paid from subject to the Consumer Rentalsprovisions of the Intercreditor Agreement in all respects.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Other Documents, the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be distinct, separate and cumulative and shall not operate applied to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, Borrowers acknowledge and agree that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as Borrowers, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Borrowers acknowledge that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to Borrowers or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Akrion, Inc.), Revolving Credit and Security Agreement (Akrion, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(g)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default (which other Events of Default have not been waived in writing) and at any time thereafter, at the option of Agent or at the direction of Required Lenders, all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Section 10.7(g) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Party’s to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate Loan Parties shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to exclude grant any rights to any Loan Party or deprive Solar Cell Owner to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent or any Lender shall be free to purchase all or any part of the Investment Property Collateral free of any right or equity of redemption in any Loan Party, which right or equity is hereby waived and released. Any such sale may terminate this Cell Owner Agreement be on cash or credit. Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property Collateral for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of the sale may have been given. Agent may adjourn any sale and sell at the time and place to which the sale is adjourned. If the Investment Property Collateral is customarily sold on a recognized market or threatens to decline speedily in value, Agent may sell such Investment Property Collateral at any time without giving prior notice to any Loan Party. Whenever notice is otherwise required by providing law to be sent by the Agent to any Loan Party of any sale or other disposition of the Investment Property Collateral, ten (10) days written notice of termination sent to Sun-Ex, such Loan Party at its address specified in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;Section 16.5.
(ii) Majority Owners Each Loan Party recognizes that Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property Collateral by reason of this Cell Owner Agreement certain prohibitions contained in the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property Collateral for their own account, for investment and without a view to the distribution or resale thereof. Each Loan Party understands that private sales so made may enforce be at prices and protect on other terms less favorable to the rights seller than if the Investment Property Collateral were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Investment Property Collateral for the period of this Cell Owner Agreement;time necessary to permit the issuer of the securities which are part of the Investment Property Collateral (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Loan Party agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) Majority Owners The net proceeds arising from the disposition of the Investment Property Collateral after deducting expenses incurred by Agent will be applied to the Obligations pursuant to Section 11.5. If any excess remains after the discharge of all of the Obligations, the same will be paid to the applicable Loan Party or to any other Person that may apply be legally entitled thereto. If after exhausting all of the Investment Property Collateral there is a deficiency, the Loan Parties will be liable therefor to the Agent; provided, however, that nothing contained herein will obligate the Agent to proceed against any security deposit Loan Party or any portion thereof other person obligated under the Obligations or against any other collateral for the Obligations prior to cure any default; andproceeding against the Investment Property Collateral.
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners At any time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or all of the Investment Property Collateral into its name or that of its nominee and may exercise all voting rights with respect to the Investment Property Collateral, but no such transfer shall constitute a taking of such Investment Property Collateral in satisfaction of any or all of the Obligations, and remedies of a secured party under Legal Requirements(B) Agent shall be entitled to receive, for application to the Obligations, all cash or stock dividends and distributions, interest and premiums declared or paid on the Investment Property Collateral.
33.2 No default (v) If any demand is made at any time upon Agent for the repayment or recovery of any amount received by it in the performance payment or on account of any of the termsObligations and if Agent repays all or any part of such amount by reason of any judgment, covenants decree or conditions order of any court or administrative body or by reason of any settlement or compromise of any such demand, the Loan Parties will be and remain liable for the amounts so repaid or recovered to the same extent as if such amount had never been originally received by Agent. The provisions of this Cell Owner Agreement on section will be and remain effective notwithstanding the part release of Sun-Ex or Solar Cell Ownerany of the Investment Property Collateral by Agent in reliance upon such payment (in which case the Loan Parties’ liability will be limited to an amount equal to the fair market value of the Investment Property Collateral determined as of the date such Investment Property Collateral was released) shall and any such release will be without prejudice to Agent’s rights hereunder and will be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run have been conditioned upon such cessation or removalpayment having become final and irrevocable. However, if This section shall survive the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate termination of this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement and Guaranty (Viant Technology Inc.), Revolving Credit and Security Agreement (Viant Technology Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated other than, with respect to clause (f) thereof, as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Loan Party; and (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured pursuant to Section 10.5(c) or otherwise or waived), at the option of Required Lenders, all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may, subject to the terms of leases and the rights of the parties thereunder, enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by the. Loan Parties. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted (but only to the extent it is necessary to exercise the foregoing remedies) a royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other Intellectual Property rights (to the extent permitted by the applicable license, franchise or other governing instrument) which are reasonably used or useful in connection with Inventory for the sole purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Loan Parties, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. The Loan Parties acknowledge that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall continue not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to run upon such cessation grant any rights to any Loan Party or removal. However, if to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate absence of this Cell Owner AgreementSection 11.1(b).
33.3 Such expenses owed by the Solar Cell Owners (c) Agent’s and Lender’s rights and obligations under this Section 11.1 shall be Project Expenses and may be paid from subject to the Consumer Rentalsprovisions of the Intercreditor Agreement in all respects.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of any an Event of Default Solar Cell OwnerDefault, Lender shall have all of the rights and remedies hereinafter set forth, enumerated herein (all of which shall be distinct, separate and are cumulative and shall not operate to exclude or deprive Solar Cell Owner exclusive of any other right or remedy allowed it available to Lender): (a) Lender may declare, at its option, all or any part of the Obligations immediately due and payable, without demand, notice of intention to accelerate, notice of acceleration, notice of nonpayment, presentment, protest, notice of dishonor, or any other notice whatsoever, all of which are hereby waived by lawCustomer and any endorser, guarantor, surety or other party liable in any capacity for any of the Obligations; (b) Lender shall have the right to enter and/or remain upon the Equipment Location(s) without any obligation to pay rent to Customer or others, or any other place or places where any of the Collateral is located and kept and:
(i) Majority Owners remove Collateral therefrom to the premises of Lender or any agent of Lender, for such time as Lender may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exdesire, in which event order to maintain, collect, sell and/or liquidate the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
Collateral; (ii) Majority Owners may enforce use such premises, together with materials, supplies, books and records of Customer, to maintain possession and/or the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any condition of the provisions of this Cell Owner Agreement;
Collateral, and to prepare the Collateral for selling, liquidating or collecting; or (iii) Majority Owners without removing the Collateral from such premises, render the Collateral unusable by the Customer or by any other party in possession thereof or with an interest therein; (c) Lender may apply require Customer to assemble the Collateral and make it available to Lender at a place to be designated by Lender; (d) Lender shall have the right to set-off, without notice to Customer, any and all deposits or other sums at any time or times credited by or due from Lender, to Customer, whether in a special account or other account or represented by a certificate of deposit (whether or not matured) which deposits and other sums shall at all times constitute additional security deposit for the Obligations and may be set-off against all or any portion thereof part of the Obligations; and (e) Lender shall have, in addition to cure any default; and
(iv) If other rights and remedies contained in this Cell Owner Security Agreement is determined and any other agreements, guarantees, notes, instruments and documents heretofore, now or at any time or times hereafter executed by Customer and delivered to be a secured credit facilityLender, Majority Owners may exercise all of the rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance UCC. If Lender seeks to take possession of any or all of the termsCollateral by court process, covenants Customer hereby irrevocably waives any bonds and any surety or conditions security relating thereto required by any statute, court rule or otherwise as an incident to such possession, and waives any demand for possession prior to the commencement of any suit or action to recover with respect thereto. Any notice required to be given by Lender of a sale or other disposition or other intended action by Lender with respect to any of the Collateral or otherwise which is made in accordance with the terms of this Cell Owner Security Agreement on the part at least five (5) business days prior to such proposed action, shall constitute fair and reasonable notice to Customer of Sun-Ex or Solar Cell Owner) any such action. Lender shall be deemed liable to continue if Customer only for its gross negligence or willful misconduct in failing to comply with any applicable law imposing duties upon Lender; Lender's liability for any such failure shall be limited to the actual loss suffered by Customer directly resulting from such failure; and so long as Solar Cell Owner in no event shall Lender have any liability to Customer for incidental, consequential, punitive or Sun-Exexemplary damages. All expenses of retaking, as holding, preparing for sale, selling or the case may belike and any other expenses incurred by Lender in connection with the exercise of any of its rights and remedies in hereunder shall constitute additional Obligations secured by the Collateral hereunder. If Lender shall employ counsel to commence, defend or intervene, file a petition, complaint, answer, motion or other pleadings, or to take any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) relating to this Agreement, the Collateral or any other agreement, guaranty, note, instrument or document heretofore, now or at any time or times hereafter executed by Customer and delivered to Lender, or to protect, collect, lease, sell, take possession of or liquidate any of the Collateral, or to attempt to enforce or to enforce any security interest in any of the Collateral, or to enforce any rights of Lender hereunder, whether before or after the occurrence of any Event of Default, or to collect any of the Obligations, then in any of such events, all of the reasonable attorneys' fees arising from such services, and any expenses, costs and charges relating thereto, shall be delayed in part of the Obligations, payable on demand and secured by the Collateral. The net proceeds realized by Lender upon any sale or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying other disposition of such default shall cease or be removed, it Collateral hereunder shall be the obligation applied toward satisfaction of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, all Obligations until all such Obligations are satisfied and paid in full. Lender shall account to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run Customer for any surplus realized upon such cessation sale or removalother disposition, and Customer shall remain liable for any deficiency. HoweverThe commencement of any action, if legal or equitable, shall not affect the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementsecurity interest of Lender in the Collateral until all of the Obligations or any judgment with respect thereto have been fully paid.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Master Security Agreement (Pharmaceutical Resources Inc), Master Security Agreement (Pharmaceutical Resources Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 hereof (other than Section 10.7(g) hereof), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(g) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used by such Loan Party in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The Net Cash Proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate the Loan Parties shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for Disposition or otherwise to complete raw material or work in process into finished goods or other finished products for Disposition; (ii) to fail to obtain third party consents for access to Collateral to be Disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise Dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to Dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to Dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or Disposition of Collateral or to provide to Agent a guaranteed return from the collection or Disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or Disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing in this Section 11.1(b) shall be construed to exclude grant any rights to any Loan Party or deprive Solar Cell Owner to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, Agent shall be free to purchase all or any part of the Investment Property Collateral. Any such sale may terminate this Cell Owner Agreement by providing written be on cash or credit. Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property Collateral for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of termination the sale may have been given. Agent may adjourn any sale and sell at the time and place to Sun-Exwhich the sale is adjourned. If the Investment Property Collateral is customarily sold on a recognized market or threatens to decline speedily in value, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in Agent may sell such notice;Investment Property Collateral at any time without giving prior notice to any Loan Party or other Person.
(ii) Majority Owners Each Loan Party recognizes that Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property Collateral by reason of this Cell Owner Agreement certain prohibitions of the Securities Act, so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property Collateral for their own account, for investment and without a view to the distribution or resale thereof. Each Loan Party understands that private sales so made may enforce be at prices and protect on other terms less favorable to the rights seller than if the Investment Property Collateral were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Investment Property Collateral for the period of this Cell Owner Agreement;time necessary to permit the issuer of the securities which are part of the Investment Property Collateral (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Loan Party agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) Majority Owners The Net Cash Proceeds arising from the Disposition of the Investment Property Collateral after deducting expenses incurred by Agent will be applied to the Obligations pursuant to Section 11.5 hereof. If any excess remains after the discharge of all of the Obligations, the same will be paid to the applicable Loan Party or to any other Person that may apply be legally entitled thereto. At any security deposit time after the occurrence and during the continuance of an Event of Default (A) Agent may transfer any or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners all of the Investment Property Collateral into its name or that of its nominee and may exercise all voting rights and remedies with respect to the Investment Property Collateral, but no such transfer shall constitute a taking of a secured party under Legal Requirements.
33.2 No default such Investment Property Collateral in the performance satisfaction of any or all of the termsObligations, covenants and (B) Agent shall be entitled to receive, for application to the Obligations, all cash or conditions of this Cell Owner Agreement stock dividends and distributions, interest and premiums declared or paid on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementInvestment Property Collateral.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (ii) any of the other Events of Default and at any time during the continuance thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Credit Party’s premises or other premises without legal process and without incurring liability to any Credit Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Credit Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowing Agent reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Credit Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Credit Party’s (y) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (z) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Credit Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Credit Party acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Credit Parties (or any of them), for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Credit Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to run upon such cessation grant any rights to any Credit Party or removal. However, if to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate absence of this Cell Owner AgreementSection 11.1(b).
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.(c) Without limiting any other provisions hereof:
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Direct Digital Holdings, Inc.), Sixth Amendment and Waiver to Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and the Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, shall have Agent may, and at the direction of the Required Lenders shall, exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms) either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use (a) all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods without cost to Agent. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any defaultObligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on each Borrower shall remain liable to Agent and the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Radnor Holdings Corp), Revolving Credit and Security Agreement (Radnor Holdings Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of each Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require such Loan Party to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the Loan Parties shall remain jointly and severally liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Loan Parties, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1 (b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this
Section 11.1 (b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (TCP International Holdings Ltd.), Revolving Credit and Security Agreement (TCP International Holdings Ltd.)
Rights and Remedies. 33.1 Upon the occurrence of any If an Event of Default Solar Cell Owner, shall have occurred and be continuing, the Lenders shall have the following rights and remedies:
(a) The Lenders may exercise any of the rights and remedies hereinafter set forthforth in the Purchase Agreement or in this Agreement (including, which shall be distinctwithout limitation, separate and cumulative and shall not operate to exclude Article 5 of this Agreement) or deprive Solar Cell Owner of any other right or remedy allowed it by applicable law:.
(ib) Majority Owners may terminate In addition to all other rights and remedies granted to the Lenders in this Cell Owner Agreement, the Purchase Agreement or by providing written notice of termination to Sun-Exapplicable law, in which event the Term Lenders shall end, and have all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party parties under Legal Requirements.
33.2 No default the UCC (whether or not the UCC applies to the affected Collateral) and the Lenders may also, without previous demand or notice except as specified below or in the performance Purchase Agreement, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the termsLenders’ offices or elsewhere, covenants for cash, on credit or conditions for future delivery, and upon such other terms as the Lenders may, in their reasonable discretion, deem commercially reasonable or otherwise as may be permitted by law. Without limiting the generality of this Cell Owner the foregoing, the Lenders may (A) without demand or notice to the Debtors (except as required under the Purchase Agreement or applicable law), collect, receive or take possession of the Collateral or any part thereof, and for that purpose the Lenders (and/or its lenders, servicers or other independent contractors) may enter upon any premises on which the Collateral is located and remove the Collateral therefrom or render it inoperable, and/or (B) sell, lease or otherwise dispose of the Collateral, or any part thereof, in one or more parcels at public or private sale or sales, at the Lenders’ offices or elsewhere, for cash, on credit or for future delivery, with or without advertising or any other formality, all of which are waived by the Debtors to the extent permitted by law, and upon such other terms as the Lenders may, in their reasonable discretion, deem commercially reasonable or otherwise as may be permitted by law. The Lenders shall have the right at any public sale or sales, and, to the extent permitted by applicable law, at any private sale or sales, to bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) and become a purchaser of the Collateral or any part thereof free of any right of redemption on the part of Sun-Ex the Debtors, which right of redemption is hereby expressly waived and released by the Debtors to the extent permitted by applicable law. The Lenders may require the Debtors to assemble the Collateral and make it available to the Lenders at any place designated by the Lenders to allow the Lenders to take possession or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying dispose of such default Collateral. The Debtors agree that the Lenders shall cease not be obligated to give more than five (5) days prior written notice of the time and place of any public sale or of the time after which any private sale may take place and that such notice shall constitute reasonable notice of such matters. The foregoing shall not require notice if none is required by applicable law. The Lenders shall not be removedobligated to make any sale of Collateral if, in the exercise of its reasonable discretion, it shall determine not to do so, regardless of the fact that notice of sale of Collateral may have been given. The Lenders may, without notice or publication (except as required by applicable law), adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the obligation of Solar Cell Owner or Sun-Extime and place fixed for sale, as the case may beand such sale may, without further delaynotice, be made at the time and place to which the same was so adjourned. The Debtors shall be liable for all reasonable expenses of retaking, holding, preparing for sale or the like, and all reasonable attorneys’ fees, legal expenses and other costs and expenses incurred by the Lenders in connection with the collection of the Indebtedness and the enforcement of the Lenders’ rights under this Agreement and the Purchase Agreement. The Debtors shall, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32extent permitted by applicable law, if any, which shall continue to run upon such cessation or removal. However, remain liable for any deficiency if the Force Majeure event causes a delay for more than one hundred eighty proceeds of any such sale or other disposition of the Collateral (180conducted in conformity with this clause (ii) daysand applicable law) applied to the Indebtedness are insufficient to pay the Indebtedness in full. The Lenders shall apply the proceeds from the sale of the Collateral hereunder, Majority Owners may terminate this Cell Owner only as actually received, against the Indebtedness in such order and manner as provided in the Purchase Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Security Agreement (Austin Ventures Vi L P), Security Agreement (Austin Ventures Vi L P)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuation of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been waived or cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent (x) may by appointment in writing appoint a receiver, interim receiver, receiver and manager or agent (each referred to as the “Receiver”) of any Collateral located in Canada and may remove or replace such Receiver from time to time or may institute proceedings in any court of competent jurisdiction for the appointment of a Receiver of such Collateral and (y) shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require such Loan Party to make the Collateral available to Agent at a convenient place; provided that in connection with the foregoing, the Agent does not breach the peace and otherwise conducts itself in accordance with Applicable Law. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the applicable Borrowing Agent reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to such Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the performance purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the termsforegoing remedies, covenants including the sale of Inventory, Agent is granted a nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of any Loan Party’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or conditions useful in connection with Inventory for the purpose of this Cell Owner Agreement on the part marketing, advertising for sale and selling or otherwise disposing of Sun-Ex or Solar Cell Ownersuch Inventory, provided that (x) such license shall be deemed to continue if and exercisable only for so long as Solar Cell Owner an Event of Default is continuing and (y) such license shall terminate upon the Termination Date and (b) Equipment for the purpose of completing the manufacture of unfinished goods, including in such license reasonable access to all media in which any of the licensed items may be recorded or Sun-Ex, as stored and to all computer programs used for the case may be, compilation or printout thereof. The cash proceeds realized from the sale of any Collateral shall be delayed applied to the Obligations in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, the applicable Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as Borrowers, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall continue not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to run upon such cessation grant any rights to any Loan Party or removal. However, if to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate absence of this Cell Owner AgreementSection 11.1(b).
33.3 Such expenses owed by (c) Notwithstanding the Solar Cell Owners foregoing provisions of this Section 11.1 to the contrary, (i) during the 15 day period following the occurrence of any Event of Default under Section 10.6(a) the Agent and the Lenders shall not accelerate the Obligations or exercise any rights or remedies with respect to the Collateral, in each case, to the extent such actions would be permitted solely as a result of such Event of Default, and (ii) such Event of Default shall be Project Expenses deemed cured to the extent that, within 15 days after the occurrence of such Event of Default, the judgment(s), non-interlocutory order(s), decree(s), arbitration award(s) or settlement amounts giving rise to such Event of Default are paid in full and may be the amount thereof which exceeds $2,000,000 is paid from the Consumer Rentalswith proceeds of equity contributions or Permitted Sponsor Subordinated Debt.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Owner, shall have the rights Each party to this Insurance Agreement has acknowledged and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endagreed to, and hereby confirms its acknowledgement and agreement to, the sale and assignment by the Seller to the Depositor, by the Depositor to the Issuer, and the pledge by the Issuer to the Indenture Trustee, of all of its right, title and interest of Sun-Ex hereunder shall expire on in, to and under the date stated in such notice;
(ii) Majority Owners may enforce Trust Estate, and the provisions of this Cell Owner Agreement Transaction Documents and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facilityIssuer’s rights, Majority Owners may exercise remedies, powers and privileges and all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance claims of the terms, covenants Issuer or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-ExDepositor, as the case may be, against the Seller, of the Issuer against the Depositor and of the Issuer against the Depositor or the Seller, under or with respect to the Transaction Documents (whether arising pursuant to the terms thereof or otherwise available at law or in equity), including without limitation (whether or not any of a Default or Event of Default under the Indenture, an Event of Default hereunder, a Servicer Termination Event, a Trigger Event or a Spread Cap Event has occurred and is continuing) (i) the right of the Issuer at any time to enforce the Transaction Documents against the Servicer, the Depositor or the Seller and the obligations of the Servicer, the Seller and the Depositor thereunder and (ii) the right at any time to give or withhold any and all consents, requests, notices, directions, approvals, demands, extensions or waivers under or with respect to any Transaction Document or the obligations in respect of the Issuer, the Servicer, the Depositor or the Seller thereunder, all of which rights, remedies, powers, privileges and claims may, notwithstanding any provision to the contrary by any of the Transaction Documents, be exercised and/or enforced by the Indenture Trustee in lieu of and in the place and stead of the Depositor and the Issuer to the same extent as the Depositor or the Issuer would otherwise do, and except to the extent a Transaction Document provides that the Insurer shall not have such a right upon an Insurer Default that has occurred and is continuing, neither the Depositor nor the Issuer may exercise any of the foregoing rights without the prior written consent of the Insurer. Each party hereto further acknowledges and agrees that, unless an Insurer Default has occurred and is continuing, the Indenture Trustee will take or refrain from taking any action, and exercise or refrain from exercising any rights under the Transaction Documents in its capacity as Indenture Trustee pursuant to the written direction of the Insurer; provided, however, that the obligations of the Indenture Trustee to take or refrain from taking, or to exercise or refrain from exercising, any such action or rights shall not apply to routine administrative tasks required to be performed by the Indenture Trustee pursuant to the Transaction Documents and shall be delayed in limited to those actions and rights that can be exercised or prevented from remedying the same due to Force Majeure; but if and when the occurrence taken (or condition which delayed not exercised or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Extaken, as the case may be, without further delay, to commence ) in full compliance with the correction provisions of such default or to continue the Transaction Documents and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementwith applicable law.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Insurance and Indemnity Agreement (Triad Financial Special Purpose LLC), Insurance and Indemnity Agreement (Triad Financial Special Purpose LLC)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of: (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement, to reduce the Maximum Revolving Advance Amount and to terminate the obligation of Lenders to make Advances. Upon the occurrence and during the continuation of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative right (and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event at the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any request of the provisions of this Cell Owner Agreement;
(iiiRequired Lenders) Majority Owners may apply to exercise any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may, during the continuation of any Event of Default, enter any of any Credit Party’s premises or other premises without legal process and without incurring liability to any Credit Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Credit Parties to assemble the Collateral in a commercially reasonable manner and make it available to Agent at a place reasonably convenient to Agent. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Credit Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Credit Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Credit Party’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Credit Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses deemed significant by Agent in its Permitted Discretion to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Credit Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Credit Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to run upon such cessation grant any rights to any Credit Party or removal. However, if to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate absence of this Cell Owner AgreementSection 11.1(b).
33.3 Such expenses owed (c) Without limiting any right or remedy of the Agent in this Agreement, upon the occurrence and during the continuance of any Event of Default, the Agent may by instrument in writing appoint any person as a receiver, an interim receiver, a manager or a receiver and manager of all or any part of the Collateral of the Canadian Borrowers. The Agent may from time to time, while an Event of Default exists, remove or replace such receiver, an interim receiver, manager or a receiver and manager, or make application to any court of competent jurisdiction for the appointment of a receiver. Any receiver, interim receiver, manager or a receiver and manager appointed by the Solar Cell Owners Agent shall (for purposes relating to responsibility for the receiver’s acts or omissions) be Project Expenses considered to be the agent of the Canadian Borrowers. The Agent may from time to time fix such receiver’s remuneration and may the Borrowers shall pay the amount of such remuneration to the Agent. The Agent shall not be paid from liable to the Consumer RentalsCanadian Borrowers or any other person in connection with appointing or not appointing a receiver, an interim receiver, a manager or a receiver and manager or in connection with the receiver’s actions or omissions, except to the extent arising out of the Agent’s bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Drilling Tools International Corp), Revolving Credit, Security and Guaranty Agreement (ROC Energy Acquisition Corp.)
Rights and Remedies. 33.1 Upon the occurrence of (i) a Default pursuant to ------------------- Section 10.7(vi) or any other Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate all obligations of Lenders herewith, including, without limitation, the obligation to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law provided for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Other Documents under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of this Cell Owner Agreement;
(iii) Majority Owners and sell any or all of the Collateral with or without judicial process. Agent may apply enter Borrower's premises or other premises without legal process and without incurring liability to Borrower therefor, and Agent may thereupon, or at any security deposit time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower to make the Collateral available to Lenders at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any portion thereof part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to cure that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any defaultpublic sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission, without charge, to use all of Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be applied as follows: first, to the reasonable costs, expenses and attorneys' fees and expenses incurred by Agent and Lenders for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to interest due upon any of the Obligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrower shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Delta Mills Inc), Revolving Credit and Security Agreement (Delta Woodside Industries Inc /Sc/)
Rights and Remedies. 33.1 Upon the occurrence of any If an Event of Default Solar Cell Owner, shall have occurred and be continuing, the Agent shall have the following rights and remedies subject to the direction and/or consent of the Lenders as required under the Credit Agreement:
(1) the Agent may exercise any of the rights and remedies hereinafter set forthforth in the Credit Agreement (including, which shall be distinctwithout limitation, separate and cumulative and shall not operate to exclude in Section 5 of this Agreement) or deprive Solar Cell Owner of any other right or remedy allowed it by applicable law:.
(i2) Majority Owners may terminate In addition to all other rights and remedies granted to the Agent in this Cell Owner Agreement, the Credit Agreement or by providing written notice of termination to Sun-Exapplicable law, in which event the Term Agent shall end, and have all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default the UCC (whether or not the UCC applies to the affected Collateral) and the Agent may also, without previous demand or notice except as specified below or in the performance Credit Agreement, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the termsAgent’s offices or elsewhere, covenants for cash, on credit or conditions for future delivery, and upon such other terms as the Agent may, in its reasonable discretion, deem commercially reasonable or otherwise as may be permitted by law. Each Debtor waives any right to require the Agent to comply with the provisions of this Cell Owner Section 9-504 of the California or other applicable Uniform Commercial Code to the maximum extent permitted by law. Without limiting the generality of the foregoing, the Agent may (A) without demand or notice to the Debtors (except as required under the Credit Agreement or applicable law), collect, receive or take possession of the Collateral or any part thereof, and for that purpose the Agent (and/or its agents, servicers or other independent contractors) may enter upon any premises on which the Collateral is located and remove the Collateral therefrom or render it inoperable, and/or (B) sell, lease or otherwise dispose of the Collateral, or any part thereof, in one or more parcels at public or private sale or sales, at the Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Agent may, in its reasonable discretion, deem commercially reasonable or otherwise as may be permitted by law. The Agent and, subject to the terms of the Credit Agreement, each of the Lenders shall have the right at any public sale or sales, and, to the extent permitted by applicable law, at any private sale or sales, to bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) and become a purchaser of the Collateral or any part thereof free of any right of redemption on the part of Sun-Ex the Debtors, which right of redemption is hereby expressly waived and released by the Debtors to the extent permitted by applicable law. The Agent may require the Debtors to assemble the Collateral and make it available to the Agent at any place designated by the Agent to allow the Agent to take possession or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying dispose of such default Collateral. The Debtors agree that the Agent shall cease not be obligated to give more than seven (7) days prior written notice of the time and place of any public sale or of the time after which any private sale may take place and that such notice shall constitute reasonable notice of such matters. The foregoing shall not require notice if none is required by applicable law. The Agent shall not be removedobligated to make any sale of Collateral if, in the exercise of its reasonable discretion, it shall determine not to do so, regardless of the fact that notice of sale of Collateral may have been given. The Agent may, without notice or publication (except as required by applicable law), adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the obligation of Solar Cell Owner or Sun-Extime and place fixed for sale, as the case may beand such sale may, without further delaynotice, be made at the time and place to which the same was so adjourned. The Debtors shall be liable for all reasonable expenses of retaking, holding, preparing for sale or the like, and all reasonable attorneys’ fees, legal expenses and other costs and expenses incurred by the Agent in connection with the collection of the Indebtedness and the enforcement of the Agent’s rights under this Agreement and the Credit Agreement. The Debtors shall, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32extent permitted by applicable law, if any, which shall continue to run upon such cessation or removal. However, remain liable for any deficiency if the Force Majeure event causes a delay for more than one hundred eighty proceeds of any such sale or other disposition of the Collateral (180conducted in conformity with this clause (ii) days, Majority Owners may terminate this Cell Owner and applicable law) applied to the Indebtedness are insufficient to pay the Indebtedness in full. The Agent shall apply the proceeds from the sale of the Collateral hereunder against the Indebtedness in such order and manner as provided in the Credit Agreement.
33.3 Such expenses owed (3) The Agent may cause any or all of the Collateral held by it to be transferred into the Solar Cell Owners name of the Agent or the name or names of the Agent’s nominee or nominees.
(4) The Agent may exercise any and all rights and remedies of the Debtors under or in respect of the Collateral, including, without limitation, any and all rights of the Debtors to demand or otherwise require payment of any amount under, or performance of any provision of any of the Collateral and any and all voting rights and corporate powers in respect of the Collateral.
(5) On any sale of the Collateral, the Agent is hereby authorized to comply with any limitation or restriction with which compliance is necessary (based on a reasoned opinion of the Agent’s counsel) in order to avoid any violation of applicable law or in order to obtain any required approval of the purchaser or purchasers by any applicable Governmental Authority.
(6) The Agent may direct account debtors and any other parties liable for any payment under any of the Collateral to make payment of any and all monies due and to become due thereunder directly to the Agent or as the Agent shall be Project Expenses direct.
(7) For purposes of enabling the Agent to exercise its rights and remedies under this Section 6.1 and enabling the Agent and its successors and assigns to enjoy the full benefits of the Collateral, the Debtors hereby grant to the Agent an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Debtors) to use, assign, license or sublicense any of the Computer Records or Software (including in such license reasonable access to all media in which any of the licensed items may be paid recorded or stored and all computer programs used for the completion or printout thereof), exercisable upon the occurrence and during the continuance of an Event of Default (and thereafter if the Agent succeeds to any of the Collateral pursuant to an enforcement proceeding or voluntary arrangement with Debtor), except as may be prohibited by any licensing agreement relating to such Computer Records or Software. This license shall also inure to the benefit of all successors, assigns, transferees of and purchasers from the Consumer RentalsAgent.
(8) If and to the extent that any Debtor is permitted to license the Intellectual Property Collateral, the Agent shall promptly enter into a non-disturbance agreement or other similar arrangement, at such Debtor’s request and expense, with such Debtor and any licensee of any Intellectual Property Collateral permitted hereunder, such non-disturbance or similar agreement to be in form and substance reasonably satisfactory to the Agent, pursuant to which (i) the Agent shall agree to assume the rights of Debtor under such non-exclusive license, and (ii) such licensee shall acknowledge and agree that the Intellectual Property Collateral licensed to it subject to the security interest created in favor of the Agent and other terms of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Noble International, Ltd.), Credit Agreement (Noble International, Ltd.)
Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Owner, shall have the rights Each party to this Insurance Agreement has acknowledged and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endagreed to, and hereby confirms its acknowledgement and agreement to, the sale and assignment by the Seller to the Depositor, by the Depositor to the Issuer, and the pledge by the Issuer to the Indenture Trustee, of all of its right, title and interest of Sun-Ex hereunder shall expire on in, to and under the date stated in such notice;
(ii) Majority Owners may enforce Trust Estate, and the provisions of this Cell Owner Agreement Transaction Documents and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facilityIssuer's rights, Majority Owners may exercise remedies, powers and privileges and all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance claims of the terms, covenants Issuer or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-ExDepositor, as the case may be, against the Seller, of the Issuer against the Depositor and of the Issuer against the Depositor or the Seller, under or with respect to the Transaction Documents (whether arising pursuant to the terms thereof or otherwise available at law or in equity), including without limitation (whether or not any of a Default or Event of Default under the Indenture, an Event of Default hereunder, a Servicer Termination Event, a Trigger Event or a Spread Cap Event has occurred and is continuing) (i) the right of the Issuer at any time to enforce the Transaction Documents against the Servicer, the Depositor or the Seller and the obligations of the Servicer, the Seller and the Depositor thereunder and (ii) the right at any time to give or withhold any and all consents, requests, notices, directions, approvals, demands, extensions or waivers under or with respect to any Transaction Document or the obligations in respect of the Issuer, the Servicer, the Depositor or the Seller thereunder, all of which rights, remedies, powers, privileges and claims may, notwithstanding any provision to the contrary by any of the Transaction Documents, be exercised and/or enforced by the Indenture Trustee in lieu of and in the place and stead of the Depositor and the Issuer to the same extent as the Depositor or the Issuer would otherwise do, and except to the extent a Transaction Document provides that the Insurer shall not have such a right upon an Insurer Default that has occurred and is continuing, neither the Depositor nor the Issuer may exercise any of the foregoing rights without the prior written consent of the Insurer. Each party hereto further acknowledges and agrees that, unless an Insurer Default has occurred and is continuing, the Indenture Trustee will take or refrain from taking any action, and exercise or refrain from exercising any rights under the Transaction Documents in its capacity as Indenture Trustee pursuant to the written direction of the Insurer; provided, however, that the obligations of the Indenture Trustee to take or refrain from taking, or to exercise or refrain from exercising, any such action or rights shall not apply to routine administrative tasks required to be performed by the Indenture Trustee pursuant to the Transaction Documents and shall be delayed in limited to those actions and rights that can be exercised or prevented from remedying the same due to Force Majeure; but if and when the occurrence taken (or condition which delayed not exercised or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Extaken, as the case may be, without further delay, to commence ) in full compliance with the correction provisions of such default or to continue the Transaction Documents and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementwith applicable law.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 2 contracts
Sources: Insurance and Indemnity Agreement (Triad Automobile Receivables Trust 2006-B), Insurance and Indemnity Agreement (Triad Financial Special Purpose LLC)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Integrated Biopharma Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of and during the continuation of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this
Section 11.1 (b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Kitty Hawk Inc)
Rights and Remedies. 33.1 Upon the occurrence of any Event of Default Solar Cell Ownera Partner Default, the Non-Defaulting Partner and the Partnership shall each have the rights following rights, options and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude may be exercised concurrently or deprive Solar Cell Owner singly in the sole and absolute discretion of any other right or remedy allowed it by lawthe Non-Defaulting Partner:
(ia) Majority Owners may terminate this Cell Owner Agreement The right to bring an action at law by providing written notice or on behalf of termination Partnership or the Non-Defaulting Partner in order to Sun-Exrecover the amounts owed, in which event the Term shall endif any, and all rightany incidental or consequential damages arising from such default (including, title without limitation, reasonable attorneys fees and interest of Sundisbursements incurred by the Partnership or the Non-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-ExDefaulting Partner, as the case may be, in prosecuting any such action).
(b) The right to bring any proceeding in the nature of injunction, specific performance or other equitable remedy, it being acknowledged by each of the Partners that damages at law may be an inadequate remedy for such default.
(c) If a sum of money is owed to the Partnership (whether a capital contribution or a loan), the Non-Defaulting Partner may advance the sum of money owed to the Partnership by the Defaulting Partner with the following results:
(i) the sum thus advanced shall be delayed in or prevented deemed to be a loan from remedying the same due Non-Defaulting Partner to Force Majeure; but if and when the occurrence or condition which delayed or prevented Defaulting Partner;
(ii) the remedying principal balance of such default shall cease or be removed, it deemed loan shall be due and payable in whole upon written demand from the obligation Non-Defaulting Partner to the Defaulting Partner;
(iii) the principal balance of Solar Cell Owner such deemed loan shall bear interest at an interest rate equal to the lesser of (1) six percent (6%) per annum over the prime rate of interest per annum announced, from time to time, by major money center banks in the United States and as published in The Wall Street Journal, compounded monthly or Sun(2) the maximum nonusurious interest rate permitted by applicable law from time to time in effect; and
(iv) all distributions from the Partnership that would otherwise be made to the Defaulting Partner (whether before or after dissolution of the Partnership) shall, instead, be paid to the Non-ExDefaulting Partner until such 44 loan and all interest accrued thereon has been repaid in full.
(d) If, as a result of the case may benature of the default, without further delayfailure, breach or omission which gave rise to commence such Partner Default, the correction damages suffered or incurred as a result thereof by the Non-Defaulting Partner are difficult or impossible to ascertain, then the Non-Defaulting Partner shall have, as liquidated damages and not as a penalty, the right and option to purchase all, but not a portion of, the Partnership Interest of such default or the Defaulting Partner at a purchase price equal to continue and complete seventy five (75%) percent of the correction thereof within then balance in the cure periods set forth in Section 32, if anyDefaulting Partner's Capital Account, which shall continue be payable in ten (10) equal annual installments of principal, together with interest at a variable rate equal to run upon the Short Term Rate, with the first installment due on the first anniversary following the closing hereinafter referred to; provided that where either WAC or CAC is the Defaulting Partner, Sony may only elect to purchase the Partnership Interests of both such cessation Persons. The option to purchase the interest of the Defaulting Partner shall be exercisable on or removalbefore the ninetieth (90) day following the expiration of the period of time in which the Defaulting Partner could have cured such default (or if such default is not capable of being cured, on or before the ninetieth (90) day following the giving of the Default Notice) by the giving of written notice to the Defaulting Partner. HoweverThe closing of any such purchase shall take place on a date and at a place designated by the Non-Defaulting Partner (but the date designated for such closing shall in any event be a date which is not later than (30) days from the exercise of such option). At the closing, if the Force Majeure event causes a delay Non-Defaulting Partner shall deliver to the Defaulting Partner the required consideration in exchange for more than one hundred eighty an instrument or instruments (180and such other documents as counsel to the Non-Defaulting Partner may reasonably request) daysvalidly assigning the interest of the Defaulting Partner to the Non-Defaulting Partner free and clear of all liens, Majority Owners may terminate claims and encumbrances. The obligation to pay the purchase price to the Defaulting Partner shall be an obligation of the Non-Defaulting Partner alone and, in any event, shall not be an obligation included within the provisions of Section 13.17 hereof. Any Defaulting Partner whose Partnership Interest is purchased under the provisions of this Cell Owner Agreementclause (d) shall remain liable for its Percentage Interest of the Partnership's liabilities in existence at the time of closing of such purchase. The Non-Defaulting Partner may, at its sole option, designate any third party of its choosing to exercise the option granted to it in this clause (d).
33.3 Such expenses owed by the Solar Cell Owners (e) If, in connection with a Division of Responsibility, indemnification of Pace shall be Project Expenses required pursuant to Section 13.9 of the SBPAP Agreement, then at the option of the Non-Defaulting Partner, the Defaulting Partner shall either (i) provide such indemnity to Pace (and indemnify the Non-Defaulting Partner on the same terms as it so indemnifies Pace pursuant to said Section 13.9), in which case the Partnership shall dissolve pursuant to Article X hereof, or (ii) fully cooperate with Pace and the Non-Defaulting Partner in order to restructure the Division of Responsibility so as to achieve as nearly as possible the results contemplated by Section 17.3 of the SBPAP Agreement without causing a termination of SBPAP under Section 708(b) of the Code in which case the Partnership shall not dissolve pursuant to Article X hereof. Each Partner hereby irrevocably constitutes and appoints the other Partners, and each officer of the other Partners, and their respective successors, acting singly, as its true and lawful attorney-in-fact, with full right of substitution, in its name, place and stead, to take all action, and to make, execute, acknowledge, swear to and file any document, instrument, agreement or amendment, in each case that may be paid from required to effectuate the Consumer Rentalsrestructuring referred to in the preceding sentence.
Appears in 1 contract
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 or 10.8 all Obligations shall be immediately due and payable and, (ii) any of the other Events of Default and at any time thereafter (if the Event of Default has not been cured), at the option of Lender all Obligations shall be immediately due and payable and Lender shall have the right to terminate this Agreement and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lender to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over Borrower.
(b) Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Lender shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Lender may enter any of Borrower’s premises or other premises without legal process and without incurring liability to Borrower therefor, and Lender may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Lender may deem advisable and Lender may require Borrower to make the Collateral available to Lender at a convenient place. With or without having the Collateral at the time or place of sale, Lender may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Lender may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirementstype customarily sold on a recognized market, Lender shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Lender may bid for and become the purchaser, and Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by Borrower.
33.2 No default in (c) In connection with the performance exercise of the termsforegoing remedies, covenants including without limitation, the sale of inventory, Lender is granted a perpetual nonrevocable, royalty free, nonexclusive license and permission to use all of Borrower’s trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or conditions useful in connection with (i) inventory solely for the purpose of this Cell Owner Agreement on selling or otherwise disposing of such inventory and (ii) Equipment solely for the part purpose of Sun-Ex completing the manufacture of unfinished goods.
(d) The proceeds realized from the sale or Solar Cell Owner) other disposition of any Collateral shall be deemed to continue if and so long applied as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delayfollows: first, to commence the correction reasonable costs, expenses and attorneys’ fees and expenses incurred by Lender for collection and for acquisition, completion, protection, removal, storage, sale and delivery of such default or the Collateral, second, to continue interest due upon any of the obligations and complete any fees payable under this Agreement; and third, to the correction thereof within principal of the cure periods set forth in Section 32Obligations. If any deficiency shall arise, if any, which Borrower shall continue remain liable to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLender therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Term Loan and Security Agreement (U S Wireless Data Inc)
Rights and Remedies. 33.1 Upon the occurrence of any If an Event of Default Solar Cell Ownerexists and is continuing, the Agent shall have the following rights and remedies:
(a) In addition to all other rights and remedies hereinafter granted to the Agent in this Agreement (including those set forth, which shall be distinct, separate and cumulative and shall not operate to exclude forth in Article 5 hereof) or deprive Solar Cell Owner of in any other right Loan Document or remedy allowed it by applicable law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term Agent shall end, and have all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default the UCC (whether or not the UCC applies to the affected Collateral). Without limiting the generality of the foregoing, the Agent may: (i) without demand or notice to any Debtor, collect, receive or take possession of the Collateral or any part thereof and for that purpose the Agent may (subject to the rights of third parties with respect thereto) enter upon any premises on which the Collateral is located and remove the Collateral therefrom or render it inoperable and in the performance event the Agent seeks to take possession of any or all of the termsCollateral by judicial process, covenants each Debtor hereby irrevocably waives any bonds and any surety or conditions security relating thereto that may be required by applicable law as an incident to such possession, and waives any demand for possession prior to the commencement of this Cell Owner Agreement any such suit or action; (ii) apply the balance of Debtor’s deposit account held at the Agent to Debtor’s Obligation owed to the Agent in its capacity as a Lender; and/or (iii) sell, lease or otherwise dispose of the Collateral, or any part thereof, in one or more parcels at public or private sale or sales, at the Agent’s offices or elsewhere, for cash, on credit or for future delivery, on an “as is” and “with all faults” basis, with a disclaimer of all warranties (including warranties of title, possession, quiet enjoyment and the like and all warranties of merchantability and fitness) and upon such other terms as the Agent may deem commercially reasonable or otherwise as may be permitted by law. Neither the Agent nor any Secured Party shall have any obligation to clean–up or otherwise prepare the Collateral for sale if the Agent determines that it is not beneficial to do so or if its costs to do so outweigh the benefits expected to be received thereby. The Agent shall have the right at any public sale or sales, and, to the extent permitted by applicable law, at any private sale or sales, to bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) and become a purchaser of the Collateral or any part thereof. Upon the reasonable request of the Agent, each Debtor shall within ten (10) days (or within such longer number of days as the Agent may approve): (i) assemble its Collateral and (ii) make it available to the Agent at any place or places designated by the Agent that are reasonably convenient to it and the Agent. Each Debtor agrees that the Agent shall not be obligated to give more than ten (10) days prior written notice of the time and place of any public sale or of the time after which any private sale may take place and that such notice shall constitute reasonable notice of such matters; provided that no such notice shall be required with respect to any Collateral that is perishable, that threatens to decline speedily in value or is a type customarily sold on the part recognized market. The Agent shall not be obligated to make any sale of Sun-Ex Collateral if it shall determine not to do so, regardless of the fact that notice of sale of Collateral may have been given. The Agent may, without notice or Solar Cell Owner) publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Each Debtor shall be liable for all reasonable expenses of retaking, holding, preparing for sale or the like, and all reasonable attorneys’ fees, legal expenses and other costs and expenses incurred by the Agent in connection with the collection of its Obligations and the enforcement of the Agent’s rights under this Agreement and arising as a result hereof (in each case, subject to the limitations set forth in the Credit Agreement). Each Debtor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral applied to its Obligations are insufficient to Fully Satisfy the Obligations in accordance with the terms and provisions of the Credit Agreement. The Agent may apply the Collateral against the Obligations as provided in the Credit Agreement and when applying the Collateral against the Obligations, unless otherwise provided in the Credit Agreement, any Obligations which are purchase money obligations or represent proceeds of loans utilized to acquire the Collateral shall be deemed to continue if be paid last. Each Debtor waives all rights of marshalling, valuation and so long appraisal in respect of the Collateral. Any proceeds received or held by the Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral may, in the discretion of the Agent, be held by the Agent as Solar Cell Owner collateral for, and then or Sun-Exat any time thereafter applied in whole or in part by the Agent against, as the case may be, shall be delayed Obligations in or prevented from remedying the same due to Force Majeure; but if and when order permitted by the occurrence or condition which delayed or prevented the remedying Credit Agreement. Any surplus of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue proceeds and complete the correction thereof within the cure periods set forth in Section 32interest accrued thereon, if any, which held by the Agent and remaining after the Obligations have been Fully Satisfied in accordance with the terms and provisions of the Credit Agreement shall continue be promptly paid over to run upon the Debtor entitled thereto or to whomsoever may be lawfully entitled to receive such cessation surplus. The Agent shall have no obligation to invest or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate otherwise pay interest on any amounts held by it in connection with or pursuant to this Cell Owner Agreement.
33.3 (b) The Agent may cause any or all of the Collateral held by it to be transferred into the name of the Agent or the name or names of the Agent’s nominee or nominees.
(c) The Agent may exercise any and all of the rights and remedies of any Debtor under or in respect of the Collateral, including any and all rights to demand or otherwise require payment of any amount under, or performance of any provision of, any of the Collateral and any and all voting rights and corporate powers in respect of the Collateral. Each Debtor shall execute and deliver (or cause to be executed and delivered) to the Agent all such proxies and other documentation as the Agent may reasonably request for the purpose of enabling the Agent to exercise the voting and other rights which it is entitled to exercise pursuant to this clause (c) and to receive the dividends, interest and other amounts which it is entitled to receive hereunder.
(d) The Agent may collect or receive all money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, the Agent is hereby authorized to comply with any limitation or restriction with which compliance is necessary, in the view of the Agent’s counsel, in order to avoid any violation of applicable law or in order to obtain any required approval of the purchaser or purchasers by any applicable governmental unit. Such expenses owed compliance will not be considered to adversely affect the commercial reasonableness of any sale of any Collateral.
(f) For purposes of enabling the Agent to exercise its rights and remedies under this Section 6.1 and enabling the Agent and its successors and permitted assigns to enjoy the full benefits of the Collateral in each case as the Agent shall be entitled to exercise its rights and remedies under this Section 6.1, each Debtor hereby grants to the Agent a nonexclusive license (exercisable solely during the continuance of any Event of Default and without payment of royalty or other compensation to it) to use, assign, license or sublicense any of its Intellectual Property included in the Collateral (subject to the rights of any Person under pre-existing Intellectual Property Licenses or other agreements), including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and all computer programs used for the completion or printout thereof and further including in such license such rights of quality control and inspection as are reasonably necessary to prevent the Trademarks included in such license from claims of invalidation. This license shall also inure to the benefit of all successors and permitted assigns and transferees of the Agent.
(g) If Agent sells any of the Collateral of a Debtor on credit, such Debtor will be credited only with payments actually made by the Solar Cell Owners purchaser, received by Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Agent may resell the Collateral and the applicable Debtor shall be Project Expenses and may be paid from credited with the Consumer Rentalsproceeds of the sale.
Appears in 1 contract
Rights and Remedies. 33.1 Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances shall be deemed terminated, or (ii) the other Events of Default specified in Article X, and at any time thereafter (such Event of Default not having previously been waived in accordance with this Agreement), Agent may (but shall not be obligated to) (and at the direction of the Required Lenders shall) upon written notice to the Loan Parties, declare all of the Obligations immediately due and payable and terminate this Agreement and terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over the Loan Parties. Upon the occurrence and continuation of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the UCC and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. In furtherance of such exercise Agent may enter any Loan Party’s premises or other premises without legal process and without incurring liability to such Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require such Loan Party to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall be distinctgive the Loan Parties reasonable notification of such sale or sales, separate it being agreed that in all events written notice mailed to the Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and cumulative become the purchaser, and shall not operate to exclude Agent, any Lender or deprive Solar Cell Owner of any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. Agent may specifically disclaim any warranties of title or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice the like at any sale of termination Collateral. In connection with and solely during the duration of the exercise of the foregoing remedies, Agent is granted permission to Sun-Exuse without charge all of each Loan Party’s trademarks, in which event the Term shall endtrade styles, trade names, patents, patent applications, and all right, title and interest of Sun-Ex hereunder shall expire on other proprietary rights which are used in connection with the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirementsforegoing.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Loan and Security Agreement (Veeco Instruments Inc)
Rights and Remedies. 33.1 Upon the occurrence of (i) a Default pursuant to Section 10.7(vi) or any other Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate all obligations of Lenders herewith, including, without limitation, the obligations to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law provided for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Other Documents under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of this Cell Owner Agreement;
(iii) Majority Owners and sell any or all of the Collateral with or without judicial process. Agent may apply enter Borrower's premises or other premises without legal process and without incurring liability to Borrower therefor, and Agent may thereupon, or at any security deposit time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower to make the Collateral available to Lenders at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any portion thereof part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to cure that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least five (5) days prior to such sale or sales is reasonable notification. At any defaultpublic sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission, without charge, to use all of Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be applied as follows: first, to the reasonable costs, expenses and attorneys' fees and expenses incurred by Agent and Lenders for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to interest due upon any of the Obligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrower shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Signal Apparel Company Inc)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of Borrower's premises or other premises without legal process and without incurring liability to Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of Borrower's (a) trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default applied in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.11.5
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Obsidian Enterprises Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 hereof (other than Section 10.7(g) hereof), all Obligations shall be immediately due and payable (including, without limitation, any fees pursuant to Section 3.4 hereof, if applicable), the Loan Parties shall be immediately required to provide replacement cash collateral to the Agent in an amount equal to the Cash Collateral that is then in the Cash Collateral Accounts, and the Commitments shall be deemed terminated and (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Cash Collateral Providers, all Obligations shall be immediately due and payable (including, without limitation, any fees pursuant to Section 3.4 hereof, if applicable), the Loan Parties shall be immediately required to provide replacement cash collateral to the Agent in an amount equal to the Cash Collateral that is then in the Cash Collateral Accounts and Agent or Required Cash Collateral Providers shall have the right, subject to Section 13.2, to terminate the Agreement and to terminate the Commitments; and (iii) without limiting any Default under Section 10.7(g) hereof, the obligation of Cash Collateral Providers to maintain Cash Collateral in the Cash Collateral Account shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default in the performance of the termstype customarily sold on a recognized market, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Agent shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying give Loan Parties reasonable notification of such default shall cease sale or be removedsales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Cash Collateral Provider may bid (including credit bid) for and become the purchaser, and Agent, any Cash Collateral Provider or any other purchaser at any such sale thereafter shall be hold the obligation Collateral sold absolutely free from any claim or right of Solar Cell Owner or Sun-Exwhatsoever kind, as the case may beincluding any equity of redemption and all such claims, without further delay, to commence the correction of such default or to continue rights and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removalequities are hereby expressly waived and released by each Loan Party. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.In connection
Appears in 1 contract
Sources: Reimbursement, Guaranty and Security Agreement (Babcock & Wilcox Enterprises, Inc.)
Rights and Remedies. 33.1 (i) Upon the occurrence of and during the continuance of an Event of Default, subject to (x) the delivery by Agent to any Loan Party of a notice of Agent’s intent to exercise rights and remedies, (y) the filing by Agent of a motion seeking emergency relief from the automatic stay on at least five (5) Business Days’ notice (such notice not to be required in the case of exigent circumstances) and (z) the Interim Order and, upon entry, the Final Order, (i) the Agent and Lenders shall no longer have any obligation to make any Advances (or otherwise extend credit); (ii) all amounts outstanding under this Agreement and the Other Documents shall, at the option of the Agent, be accelerated and become immediately due and payable; (iii) the Agent and the Pre-Petition Agent shall be entitled to immediately terminate each Debtor’s right to use Cash Collateral, without further application or order of the Bankruptcy Court, provided, however, that such Debtor shall have the right to use Cash Collateral to pay their weekly ordinary course payroll included in the approved Budget through and including the date immediately following the date on which such Event of Default Solar Cell Owneroccurs, shall have the rights and remedies hereinafter set forth, which (iv) each Debtor shall be distinctbound by all post-default restrictions, separate prohibitions, and cumulative other terms as provided in the Interim Order, this Agreement, the Other Documents, the Pre-Petition Credit Agreement and the Pre-Petition Other Documents, (v) the Agent shall not operate be entitled to exclude charge the Default Rate of interest under the Credit Agreement and (vi) subject only to (x) the notice requirement set forth in Section 11.1(b) below and (y) the Interim Order or deprive Solar Cell Owner of Final Order, as applicable, both the Agent and the Pre-Petition Agent shall be entitled to take any other act or exercise any other right or remedy allowed it by as provided in this Agreement, the Other Documents, the Pre-Petition Credit Agreement, the Pre-Petition Other Documents, or applicable law:
, including, without limitation, setting off any Obligations or the outstanding Pre-Petition Obligations (iif any) Majority Owners may terminate this Cell Owner Agreement by providing written notice with Collateral, Pre-Petition Collateral or proceeds in the possession of termination to Sunany Pre-Ex, in which event the Term shall endPetition Secured Party or Lender, and enforcing any and all rightrights and remedies with respect to the Collateral or Pre-Petition Collateral, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;as applicable.
(ii) Majority Owners During the continuance of any Event of Default, the Agent shall have the right to exercise any and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, under the PPSA under the terms of the Collateral Documents and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enforce enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require any or each of Loan Parties to make the Collateral available to Agent at a convenient place. During the continuance of an Event of Default with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give any or each of the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party (notwithstanding the last sentence of this paragraph). Notwithstanding the last sentence of this paragraph, in connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. Notwithstanding the last sentence of this paragraph, if any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor. Upon the occurrence of an Event of Default which is continuing, Agent may seek the appointment of a receiver, receiver-manager, monitor or keeper (a “Receiver”) under the laws of Canada or any Province thereof including to take possession of all or any portion of the Collateral of Canadian Loan Parties or to operate same and, to the maximum extent permitted by Applicable Law, may seek the appointment of such a receiver without the requirement of prior notice or a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed agent of such Loan Parties and not Agent and the Lenders, and Agent and the Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of any such Receiver, his/her servants or employees. Subject to the provisions of this Cell Owner Agreement the instrument appointing him/her, any such Receiver shall have power to take possession of Collateral of the Canadian Loan Parties, to preserve Collateral of such Loan Parties or its value, to carry on or concur in carrying on all or any part of the business of such Loan Parties and may enforce and protect to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral of such Loan Parties. To facilitate the rights foregoing powers, any such Receiver may, to the exclusion of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedyall others, including recovery the Canadian Loan Parties, enter upon, use and occupy all premises owned or occupied by such Loan Parties wherein Collateral of such Loan Parties may be situated, maintain Collateral of such Loan Parties upon such premises, borrow money on a secured or unsecured basis and use Collateral of the Loan Parties directly in carrying on such Loan Parties business or as security for loans or advances to enable the Receiver to carry on such Loan Parties’ business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all moneys due money received from time to time by such Receiver in carrying out his/her appointment shall be received in trust for and paid over to Agent. Every such Receiver may, in the discretion of Agent, be vested with all or to become due from Sun-Ex under any of the rights and powers of Agent and the Lenders. Agent may, either directly or through its nominees, exercise any or all powers and rights given to a Receiver by virtue of, and in accordance with, the foregoing provisions of this Cell Owner Agreement;paragraph and Applicable Law. Except as expressly provided herein, this clause (ii) shall not apply to a Loan Party that is a Debtor.
(iiib) Majority Owners may apply Subject to (x) the delivery by Agent to any security deposit or any portion thereof Loan Party of a notice of Agent’s intent to cure any default; and
exercise rights and remedies, (ivy) If this Cell Owner Agreement is determined the filing by Agent of a motion seeking emergency relief from the automatic stay on at least five (5) Business Days’ notice (such notice not to be a secured credit facilityrequired in the case of exigent circumstances) and (z) the Interim Order and, Majority Owners may upon entry, the Final Order, upon the occurrence and during the continuance of an Event of Default, subject to any notice period set forth in the Interim Order or the Final Order (which notice period only applies to the Collateral enforcement remedies described below) to counsel for the Debtors, counsel for any Committee, the US Trustee, the Agent for the benefit of itself and the Lenders, and the Pre-Petition Agent, for the benefit of itself and the other Pre-Petition Secured Parties, as applicable, shall be entitled to take any action and exercise all rights and remedies provided to them by the Interim Order, this Agreement, the Other Loan Documents or the Pre-Petition Other Documents, or applicable law, unless otherwise ordered by the Bankruptcy Court, as the Agent or the Pre-Petition Agent, as applicable, may deem appropriate in their sole discretion to, among other things, proceed against and realize upon the Collateral (including the Pre-Petition Collateral) or any other assets or properties of the Loan Parties or any Debtor’s Estate upon which the Agent, for the benefit of itself and the Lenders, and the Pre-Petition Agent, for the benefit of itself and the other Pre-Petition Secured Parties, has been or may hereafter be granted liens or security interests to obtain the full and indefeasible payment of all the Pre-Petition Obligations and Post-Petition Obligations. Notwithstanding the foregoing or anything in Section 11.1(a) above, Agent may continue to apply proceeds received into the lockbox or collection account to reduce the Pre-Petition Obligations or the Post-Petition Obligations in any order at the sole discretion of the Agent during any notice period set forth in the Interim Order or the Final Order. During such notice period set forth in the Interim Order or the Final Order, either or both the Debtors and the Committee shall be entitled to seek an emergency hearing with the Bankruptcy Court.
(c) Additionally, upon the occurrence and during the continuance of an Event of Default and the exercise by Agent or the Pre-Petition Agent of their respective rights and remedies under the Interim Order, the Credit Agreement, the Other Documents, the Pre-Petition Credit Agreement or the Pre-Petition Other Documents, provided that the Debtors and the Agent agree upon a mutually acceptable wind down budget, each Loan Party shall cooperate with the Agent in the exercise of rights and remedies and assist the Agent in effecting any sale or other disposition of the Collateral required by the Agent, including any sale of Collateral pursuant to Bankruptcy Code section 363 or assumption and assignment of Collateral consisting of contracts and leases pursuant to Bankruptcy Code section 365, in each case, upon such terms that are acceptable to the Agent.
(d) Subject to (x) the delivery by Agent to any Loan Party of a secured notice of Agent’s intent to exercise rights and remedies, (y) the filing by Agent of a motion seeking emergency relief from the automatic stay on at least five (5) Business Days’ notice (such notice not to be required in the case of exigent circumstances) and (z) the Interim Order and, upon entry, the Final Order, in connection with a liquidation of any of the Collateral, the Agent (or any of its employees, agents, consultants, contractors, or other professionals) shall have the right, at the sole cost and expense of the Loan Parties, to: (i) enter upon, occupy, and use any real or personal property, fixtures, equipment, leasehold interests, or warehouse arrangements owned or leased by any Loan Party; provided, however, the Agent may only be permitted to do so in accordance with (a) existing rights under applicable non-bankruptcy law, including, without limitation, applicable leases, (b) any pre-petition (and, if applicable, post-petition) landlord waivers or consents, or (c) further order of the Bankruptcy Court on motion and notice appropriate under the circumstances; and (ii) use any and all trademarks, tradenames, copyrights, licenses, patents, equipment or any other similar assets of any Loan Party, or assets which are owned by or subject to a lien of any third party under Legal Requirementsand which are used by any Loan Party in its business. The Agent and Lenders will be responsible for the payment of any applicable fees, rentals, royalties, or other amounts owing to such lessor, licensor or owner of such property (other than a Loan Party) for the period of time that the Agent actually occupies any real property or uses the equipment or the intellectual property (but in no event for any accrued and unpaid fees, rentals, or other amounts owing for any period prior to the date that the Agent actually occupies or uses such assets or properties).
33.2 No default (e) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent: (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the performance same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the termstypes included in the Collateral or that have the reasonable capacity of doing so, covenants or conditions that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Cell Owner Agreement Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the part of Sun-Ex or Solar Cell Ownerforegoing, nothing contained in this Section 11.1(b) shall be deemed construed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due grant any rights to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default any Loan Party or to continue and complete impose any duties on the correction thereof within Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the cure periods set forth in absence of this Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement11.1(b).
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Invacare Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such Event of Default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of Borrower's premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with the exercise by Agent of its rights with respect to the Collateral. The proceeds realized from the sale and/or collection of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions Obligations and any fees payable under this Agreement; and, third, to the principal of the Obligations. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) Notwithstanding anything to the contrary contained in this Agreement and subsection (a) of this Cell Owner Agreement;
(iii) Majority Owners may apply Section 11, Agent will not take any security deposit action pursuant to this Agreement which would constitute or result in any assignment of a License owned by any Borrower or any portion thereof to cure any default; and
Change of Control of such Borrower if such assignment or Change of Control would require under then existing law (iv) If this Cell Owner Agreement is determined to be a secured credit facilityincluding, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in without limitation, the performance FCC Rules), the prior approval of the termsFCC and PRTRB, covenants or conditions without first obtaining such approval of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if FCC and so long as Solar Cell Owner or Sun-ExPRTRB, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementapplicable.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Trescom International Inc)
Rights and Remedies. 33.1 Upon the occurrence and during the continuance ------------------- of any an Event of Default Solar Cell OwnerDefault, shall have the in addition to any and all other rights and remedies hereinafter set forthwhich the Administrative Lender or any Secured Party may then have hereunder, under any other Loan Documents, under Applicable Law or otherwise, the Administrative Lender at its option may, subject to any limitation or restriction imposed by any applicable bankruptcy, insolvency or other law relating to the relief of debtors, (a) obtain from any Person information regarding Pledgor, any issuer of the Collateral, or any of their businesses, which shall be distinct, separate and cumulative and shall not operate information any such Person may furnish without liability to exclude Pledgor; (b) require Pledgor to give possession or deprive Solar Cell Owner control of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions Collateral to the Administrative Lender; (c) unless earlier permitted hereunder, take control of this Cell Owner funds generated by the Collateral and any other proceeds (except any distribution permitted under the Credit Agreement;
) and exercise all other rights which an owner of such Collateral may exercise; (iiid) Majority Owners may apply any declare the entire unpaid balance of principal and interest on the Obligation immediately due and payable, without notice, demand or presentment, which are hereby expressly waived; (e) reduce its claim to judgment, foreclose or otherwise enforce its security deposit interest in all or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance part of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell OwnerCollateral by any available judicial procedure; (f) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32after notification, if any, which shall continue to run upon provided for in this Agreement or any other Loan Documents, sell or otherwise dispose of, at the office of the Administrative Lender, all or any part of the Collateral, and any such cessation sale or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners other disposition shall be Project Expenses in accordance with Applicable Law, and may be as a unit or in parcels, by public or private proceedings, and by way of one or more contracts (it being agreed that the sale of any part of the Collateral shall not exhaust the Administrative Lender's power of sale, but sales may be made from time to time until all of the Collateral has been sold or until the Obligation has been paid from in full), and at any such sale it shall not be necessary to exhibit the Consumer RentalsCollateral; (g) at its discretion, retain the Collateral in satisfaction of the Obligation whenever the circumstances are such that the Administrative Lender is entitled to do so under Applicable Law; (h) apply by appropriate judicial proceedings for appointment of a receiver for the Collateral, or any part thereof, and Pledgor hereby consents to any appointment; (i) buy the Collateral at any public sale; and (j) buy the Collateral at any private sale, subject to any restrictions imposed by Applicable Law. Any Secured Party may buy the Collateral at any public sale and buy the Collateral at any private sale, subject to the restrictions imposed by Applicable Law and this Agreement. Pledgor agrees that, if notice is required to be given by Applicable Law, 10 days' advance written notice shall constitute reasonable notice. The Administrative Lender shall apply the proceeds of any collection, sale, disposition or other realization upon any Collateral as follows: First, to the payment of the reasonable out-of-pocket costs and ----- expenses of such collection, sale, disposition, or other realization, including reasonable out-of-pocket costs and expenses of the Administrative Lender and the reasonable fees and expenses of its agents and counsel; Next, to the payment of the Obligation, equally and ratably to each ---- Secured Party in accordance with the respective amounts thereof due and owing to each Secured Party; and Finally, to the payment to Pledgor, or their respective successors or ------- assigns, or as a court of competent jurisdiction may direct, of any surplus then remaining. If the proceeds of collection, sale, disposition, or other realization are insufficient to cover the costs and expenses of such realization and the payment in full of the Obligation, Pledgor shall remain liable for any deficiency.
Appears in 1 contract
Sources: Parent Pledge Agreement (Kevco Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of any an Event of Default Solar Cell Ownerdescribed in Section 13.1(f) hereof, all of the Obligations shall immediately and automatically become due and payable, without notice of any kind and all the Revolving Credit Commitments shall be terminated. Upon the occurrence and during the continuation of any other Event of Default, all Obligations may, at the option of Agent, or shall, at the direction of the Required Lenders, and without demand, notice or legal process of any kind, be declared, and immediately shall become, due and payable and at such time all of the Revolving Credit Commitments shall terminate. Upon the occurrence and during the continuation of an Event of Default, Agent (or any Person acting for Agent) may, or shall, at the direction of Required Lenders, exercise from time to time any rights and remedies available to it under this Agreement, the other Loan Documents, the Uniform Commercial Code and any other applicable law. Without limiting the foregoing, at any time after an Event of Default has occurred and is continuing. Agent shall have the right to cause PCI to exercise the AT&T Transfer Right as to any and all applicable subscribers (and Borrowers hereby irrevocably appoint Agent as their attorney-in-fact for such purpose, which appointment is coupled with an interest and shall be irrevocable until all of the Obligations are satisfied and indefeasibly paid in full in cash and this Agreement is terminated). All of Agent’s rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall non-exclusive to the extent permitted by law. In particular, but not operate to exclude by way of, limitation of the foregoing, Agent may, without notice, demand or deprive Solar Cell Owner legal process of any other kind, take possession of any or all of the Collateral (in addition, to Collateral of which it already has possession), wherever it may be found, and for that purpose may pursue the same wherever it may be found, and may enter onto any Borrower’s premises where any of the Collateral may be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall be sold or otherwise disposed of, and Agent shall have the right to store the same at any Borrower’s premises without cost to Agent. At Agent’s request, each Borrower shall at its own expense assemble the Collateral and make it available to Agent at one or more places to be designated by Agent and reasonably convenient to Agent and Lenders. Each Borrower recognizes that if any Borrower fails to perform, observe or discharge any of its Obligations under this Agreement or the Other Loan Documents, a remedy allowed it at law may not provide adequate relief to Agent and Lenders, and agrees that Agent and Lenders shall be entitled to temporary and permanent injunctive relief in any such case if such remedy would not provide adequate relief. Any notification of intended disposition of any of the Collateral required by law:
law will be deemed to be a reasonable authenticated notification of disposition if given at least ten (10) days prior to such disposition and such notice shall (i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exdescribe Agent and Borrowers, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce describe the provisions of this Cell Owner Agreement and may enforce and protect Collateral that is the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any subject of the provisions of this Cell Owner Agreement;
intended disposition, (iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
state the method of the intended disposition, (iv) If this Cell Owner Agreement is determined state that Borrowers are entitled to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance an accounting of the terms, covenants or conditions of this Cell Owner Agreement on Obligations and state the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32charge, if any, for an accounting and (v) state the time and place of any public disposition or the time after which shall continue any private sale is to run upon be made. Agent may disclaim any warranties that might arise in connection with the sale, lease or other disposition of the Collateral and has no obligation to provide any warranties at such cessation or removaltime. However, if Any Proceeds of any disposition by Agent of any of the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and Collateral may be paid applied by Agent to the payment of expenses in connection with the Collateral, including, without limitation, reasonable legal expenses and reasonable attorneys’ fees, and any balance of such Proceeds may be applied by Agent toward the payment of such of the Obligations, and in such order of application, as Agent may from the Consumer Rentalstime to time elect.
Appears in 1 contract
Sources: Loan and Security Agreement (Teletouch Communications Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by Borrowers. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower's (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, Borrowers acknowledge and agree that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Borrowers, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Borrowers acknowledge that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to Borrowers or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Teamstaff Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter (if such Event of Default has not previously been waived in writing by Agent, Required Lenders, or all Lenders, as applicable), at the option of Agent with the consent of the Required Lenders, or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate, in whole or in part (including by a reduction in the Revolving Commitments), the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2, any Default under Section 10.7(vii), the obligation of L▇▇▇▇▇▇ to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, (i) Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with [Innovex] 3rd A&R Credit Agreement 121 or without judicial process, (ii) Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place, (iii) with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect, (iv) appoint by instrument in writing one or more receiver, a receiver, a manager or a receiver and manager of any Loan Party or any or all of the Collateral with such rights, powers and authority (including any or all of the rights, powers and authority of Agent under this Agreement) as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such Receiver from time to time and, to the extent permitted by applicable law, any such receiver, a receiver, a manager or a receiver and manager appointed by Agent shall (for purposes relating to responsibility for such receiver, a receiver, a manager or a receiver and manager’s acts or omissions) be considered to be the agent of the applicable Loan Party and not of Agent or (v) obtain from any court of competent jurisdiction an order for the appointment of a secured party under Legal Requirements.
33.2 No default receiver, a receiver, a manager or a receiver and manager of any Loan Party or for the sale or foreclosure of any or all of the Collateral. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. At the time of and in connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrower shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general [Innovex] 3rd A&R Credit Agreement 122 circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent reasonably deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit Agreement (Innovex International, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 6.01(d), all Convertible Notes Obligations shall be immediately due and payable, and (ii) any of the other Events of Default and at any time thereafter, at the option of the Required Holders, all Convertible Notes Obligations shall be immediately due and payable. If any Event of Default Solar Cell Owneroccurs and is continuing, the Trustee and the Notes Collateral Agent (in each case, acting at the direction of the Required Holders) shall have the right to exercise any and all rights and remedies hereinafter set forthprovided for herein, under the Convertible Note Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. The Notes Collateral Agent (acting at the direction of the Required Holders) may enter any of the Company’s or any Guarantor’s premises or other premises without legal process and without incurring liability to the Company on any Guarantor therefor, and the Notes Collateral Agent may thereupon, or at any time thereafter, without notice or demand, take the Collateral and remove the same to such place as the Notes Collateral Agent may deem advisable and the Notes Collateral Agent may require the Company and the Guarantors to make the Collateral available to the Notes Collateral Agent at a convenient place. With or without having the Collateral at the time or place of sale, the Notes Collateral Agent (acting at the direction of the Required Holders) may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as the Notes Collateral Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Notes Collateral Agent shall give the Company or the relevant Guarantor reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to the Company at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale the Notes Collateral Agent (or its designee) or any Holder may bid (including credit bid) for and become the purchaser, and the Notes Collateral Agent, any Holder or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by the Company and each Guarantor. In connection with the exercise of the foregoing remedies, including the sale of Inventory, the Notes Collateral Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and the Notes Collateral Agent is granted permission to use all of the Company’s and each Guarantor’s (a) Intellectual Property which is used by the Company or such Guarantor in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The Net Cash Proceeds realized from the sale of any Collateral shall be distinctapplied to the Convertible Notes Obligations in the order set forth in Section to Section 6.09 hereof. Non-cash proceeds will only be applied to the Convertible Notes Obligations as they are converted into cash. If any deficiency shall arise, separate the Company and cumulative the Guarantors shall remain liable to the Notes Collateral Agent and the Holders therefor.
(b) To the extent that Applicable Law imposes duties on the Trustee or the Notes Collateral Agent to exercise remedies in a commercially reasonable manner, each Company Group Obligor acknowledges and agrees that it is not commercially unreasonable for the Trustee or the Notes Collateral Agent: (i) to fail to incur expenses to prepare Collateral for Disposition or otherwise to complete raw material or work in process into finished goods or other finished products for Disposition; (ii) to fail to obtain third party consents for access to Collateral to be Disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or Disposition of Collateral to be collected or Disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise Dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Company Group Obligor, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the Disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to Dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to Dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Trustee or the Notes Collateral Agent against risks of loss, collection or Disposition of Collateral or to provide to the Trustee or the Notes Collateral Agent a guaranteed return from the collection or Disposition of Collateral; or (xii) to the extent deemed appropriate by the Trustee or the Notes Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Trustee or the Notes Collateral Agent in the collection or Disposition of any of the Collateral. Each Company Group Obligor acknowledges that the purpose of this Section 6.02(b) is to provide non-exhaustive indications of what actions or omissions by the Trustee or the Notes Collateral Agent would not be commercially unreasonable in the Trustee or the Notes Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Trustee or the Notes Collateral Agent shall not operate be deemed commercially unreasonable solely on account of not being indicated in this Section 6.02(b). Without limitation upon the foregoing, nothing in this Section 6.02(b) shall be construed to exclude grant any rights to any Company Group Obligor or deprive Solar Cell Owner to impose any duties on the Trustee or the Notes Collateral Agent that would not have been granted or imposed by this Indenture or by Applicable Law in the absence of this Section 6.02(b).
(c) Without limiting any other right or remedy allowed it by lawprovision hereof:
(i) Majority Owners At any bona fide public sale, and to the extent permitted by Applicable Law, at any private sale, the Trustee or the Notes Collateral Agent or such party’s designee shall be free to purchase all or any part of the Investment Property Collateral. Any such sale may terminate this Cell Owner Agreement by providing written be on cash or credit. The Trustee or the Notes Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so and acting on the direction of the Required Holders) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Investment Property Collateral for their own account in compliance with Regulation D of the Securities Act or any other applicable exemption available under the Securities Act. The Trustee or the Notes Collateral Agent will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of termination the sale may have been given. The Trustee or the Notes Collateral Agent may adjourn any sale and sell at the time and place to Sun-Exwhich the sale is adjourned. If the Investment Property Collateral is customarily sold on a recognized market or threatens to decline speedily in value, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on Trustee or the date stated in Notes Collateral Agent may sell such notice;Investment Property Collateral at any time without giving prior notice to any Company Group Obligor or other Person.
(ii) Majority Owners Each Company Group Obligor recognizes that the Trustee or the Notes Collateral Agent may enforce be unable to effect or cause to be effected a public sale of the provisions Investment Property Collateral by reason of certain prohibitions of the Securities Act, so that the Trustee or the Notes Collateral Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Investment Property Collateral for their own account, for investment and without a view to the distribution or resale thereof. Each Company Group Obligor understands that private sales so made may be at prices and on other terms less favorable to the seller than if the Investment Property Collateral were sold at public sales, and agrees that Agent has no obligation to delay or agree to delay the sale of any of the Investment Property Collateral for the period of time necessary to permit the issuer of the securities which are part of the Investment Property Collateral (even if the issuer would agree), to register such securities for sale under the Securities Act. Each Company Group Obligor agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.
(iii) The Net Cash Proceeds arising from the Disposition of the Investment Property Collateral after deducting expenses incurred by the Trustee or the Notes Collateral Agent will be applied to the Convertible Notes Obligations pursuant to Section 6.02(b). If any excess remains after the discharge of all of the Convertible Notes Obligations, the same will be paid to the applicable Company Group Obligor or to any other Person that may be legally entitled thereto. At any time after the occurrence and during the continuance of an Event of Default (A) the Trustee or the Notes Collateral Agent (in each case, acting at the direction of the Required Holders) may transfer any or all of the Investment Property Collateral into its name or that of its nominee and may exercise all voting rights with respect to the Investment Property Collateral, but no such transfer shall constitute a taking of such Investment Property Collateral in satisfaction of any or all of the Convertible Notes Obligations, and (B) the Trustee or the Notes Collateral Agent shall be entitled to receive, for application to the Convertible Notes Obligations, all cash or stock dividends and distributions, interest and premiums declared or paid on the Investment Property Collateral.
(d) The Trustee or the Notes Collateral Agent (in each case, acting at the direction of the Required ▇▇▇▇▇▇▇) shall have the right to determine which rights, Liens, security interests or remedies the Trustee or the Notes Collateral Agent may at any time pursue, relinquish, subordinate, or modify, which procedures, timing and methodologies to employ, and what any other action to take with respect to any or all of the Collateral and in what order, thereto and such determination will not in any way modify or affect any of the Trustee or the Notes Collateral Agent’s or Holders’ rights hereunder as against the Company Group Obligors or each other.
(e) In addition to any other rights which the Trustee or the Notes Collateral Agent or any Holder may have under Applicable Law, upon the occurrence of an Event of Default hereunder, the Trustee or the Notes Collateral Agent and such Holder shall have a right, immediately and without notice of any kind, to apply any Company Group Obligor’s property held by the Trustee or the Notes Collateral Agent and such Holder or any of their Affiliates to reduce the Convertible Notes Obligations and to exercise any and all rights of setoff which may be available to the Trustee or the Notes Collateral Agent and such Holder with respect to any deposits held by the Trustee or the Notes Collateral Agent or such Holder.
(f) Subject to the Intercreditor Agreement, if any Event of Default occurs and is continuing, subject to the terms of the Intercreditor Agreement, each of the Trustee and the Notes Collateral Agent (in each case, acting at the direction of the Required Holders) shall have the right to transfer the whole or any part of the Pledged Collateral into the name of itself or its nominee or to conduct a sale of the Pledged Collateral pursuant to the UCC or pursuant to any other Applicable Law; (b) the right to exercise all voting rights, or any other ownership or consensual rights (including, without limitation, (i) the right to remove and vote for board members or the equivalent thereof, and (ii) any dividend or distribution rights) in respect of the Pledged Collateral (but under no circumstances is the Trustee or the Notes Collateral Agent obligated by the terms of this Cell Owner Agreement and may enforce and protect Indenture to exercise such rights); (c) the rights of Solar Cell Owners hereunder by a suit or suits right to notify, in equity or at law for the specific performance name of any covenant Guarantor, the Persons obligated under any of the Pledged Collateral to make payment to the Trustee or agreement contained herein, or for the enforcement Notes Collateral Agent of any other appropriate legal or equitable remedy, including recovery of all moneys amounts due or to become due from Sun-Ex under with respect to such Pledged Collateral; and (d) the right to release, surrender or exchange any of the provisions Pledged Collateral at any time, or to compromise any dispute with respect to the same. At any time following the occurrence and during the continuance of this Cell Owner an Event of Default, and subject to the terms of the Intercreditor Agreement;, the Trustee or the Notes Collateral Agent (in each case, acting at the direction of the Required Holders) may proceed against the Pledged Collateral, or any other Collateral, in any order, and against any Guarantor in any order to satisfy the Convertible Notes Obligations. To the extent permitted by Applicable Law, each Guarantor waives and releases any right to require the Trustee or the Notes Collateral Agent to first collect any of the Convertible Notes Obligations secured hereby from any other Collateral of such Guarantor or any other Person (including, without limitation, the Company Group Obligors) securing the Convertible Notes Obligations under any theory of marshalling of assets, or otherwise.
(iiig) Majority Owners may apply Each Guarantor hereby irrevocably severally appoints the Trustee and the Notes Collateral Agent, and any security deposit Trustee’s or Notes Collateral Agent’s nominee, or any portion other Person whom the Trustee or the Notes Collateral Agent may designate, as such Guarantor’s attorney-in-fact and irrevocable proxy, subject to the terms hereof, following the occurrence and during the continuance of an Event of Default at the Trustee or the Notes Collateral Agent option (in each case, acting at the direction of the Required Holders) and subject to the terms of the Intercreditor Agreement: (a) to effectuate the transfer of the Pledged Collateral on the books of the issuer thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance name of the termsTrustee or the Notes Collateral Agent or to the name of Trustee’s or Notes Collateral Agent’s nominee, covenants designee or conditions assignee; (b) to endorse and collect checks, notes, drafts, money orders and other forms of this Cell Owner Agreement payment or security payable to such Guarantors representing distributions or other payments on the part Pledged Collateral; (c) to demand, collect, receive and sue for any and all sums or properties which may become due or payable in respect of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying Pledged Collateral of such default shall cease Guarantor with full power to settle, adjust or be removed, it shall be compromise any claim thereunder as fully as such Guarantor could do itself; and (d) to carry out the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction terms and provisions hereof. Each Guarantor hereby ratifies and approves all acts of such default attorney-in-fact made in accordance with this Indenture and agrees that such attorney-in-fact will not be liable for any such acts, omissions, errors of judgment or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon mistakes of law or fact other than by such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.Person’s gross negligenc
Appears in 1 contract
Rights and Remedies. 33.1 Upon the occurrence of: (i) an Event of Default pursuant to Section 10.6 or 10.4, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances and the obligation of Issuer to issue or cause the issuance of any Letter of Credit shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter (such Event of Default not have previously been waived in writing), at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Section 10.6 hereof, the obligation of Lenders to make Advances hereunder and the obligation of Issuer to issue or cause the issuance of any Letter of Credit shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.type
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Virco MFG Corporation)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 or 10.8, all Obligations shall be immediately due and payable and this Agreement and the obligation of the Lender and the Issuer to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of the Lender, all Obligations shall be immediately due and payable and the Lender and the Issuer shall have the right to terminate this Agreement and to terminate the obligation of the Lender and the Issuer to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, the obligation of the Lender and the Issuer to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, the Lender shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the Uniform Commercial Code and at law or equity generally, separate including, without limitation, the right to foreclose the security interests granted herein and cumulative to realize upon any Collateral by any available judicial procedure and/or to take, to the extent permitted by applicable law, possession of and shall not operate to exclude sell any or deprive Solar Cell Owner all of the Collateral with or without judicial process. The Lender may enter any of any Loan Party's premises or other right premises without legal process and without incurring liability to any Loan Party therefor, and the Lender may thereupon, or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Exat any time thereafter, in which event its discretion without notice or demand, take the Term shall end, Collateral and all right, title and interest of Sun-Ex hereunder shall expire on remove the date stated in same to such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, place as the case Lender may be, shall be delayed in or prevented from remedying deem advisable and the same due Lender may require the Loan Parties to Force Majeure; but if and when make the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, Collateral available to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.the
Appears in 1 contract
Sources: Credit and Security Agreement (Blonder Tongue Laboratories Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirementstype customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing any unfinished job, contract, project or assignment as deemed necessary by Agent. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
33.2 No default (b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the performance same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the termstypes included in the Collateral or that have the reasonable capacity of doing so, covenants or conditions that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Cell Owner Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) With respect to Exploration and any Collateral held or owned by it, upon the occurrence of and during the continuance of any Event of Default, Agent may appoint or reappoint by instrument in writing, any Person or Persons, whether an officer or officers or an employee or employees of Agent or not, to be an interim receiver, receiver or receivers (hereinafter called a “Receiver”, which term when used herein shall include a receiver and manager) of Collateral (including any interest, income or profits therefrom) and may remove any Receiver so appointed and appoint another in his/her/its stead. Any such Receiver shall, so far as concerns responsibility for his/her/its acts, be deemed the agent of Exploration and not Agent and Agent shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sun-Ex any such Receiver or Solar Cell Owner) his/her/its servants, agents or employees. Subject to the provisions of the instrument appointing him/her/it, any such Receiver shall have power to take possession of Collateral, to preserve Collateral or its value, to carry on or concur in carrying on all or any part of the business of Exploration and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including Agent, enter upon, use and occupy all premises owned or occupied by Agent wherein Collateral may be situate, maintain Collateral upon such premises, borrow money on a secured or unsecured basis and use Collateral directly in carrying on the business of Exploration or as security for loans or advances to enable the Receiver to carry on the business or Exploration or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her/its appointment shall be deemed to continue if received in trust for and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from over to Agent. Every such Receiver may, in the Consumer Rentalsdiscretion of Agent, be vested with all or any of the rights and powers of Agent.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Geokinetics Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lender to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Lender all Obligations shall be immediately due and payable and Lender shall have the right to terminate this Agreement and to terminate its obligation to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of Lender to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Lender shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Lender may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Lender may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Lender may deem advisable and Lender may require Borrowers to make the Collateral available to Lender at a convenient place. With or without having the Collateral at the time or place of sale, Lender may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Lender may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Lender shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Representative at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Lender may bid (including credit bid) for and become the purchaser, and Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Lender is granted a perpetual nonrevocable, royalty free, nonexclusive license and Lender is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Lender therefor.
(b) To the extent that Applicable Law imposes duties on Lender to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for Lender: (i) to fail to incur expenses reasonably deemed significant by Lender to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by L▇▇▇▇▇, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Lender in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by L▇▇▇▇▇ would not be commercially unreasonable in Lender’s exercise of remedies against the Collateral and that other actions or omissions by Lender shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Lender that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Quality Gold Holdings, Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(vii) hereof, the obligation of ▇▇▇▇▇▇▇ to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party's premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party's (a) Intellectual Property which is necessary in connection with Inventory for the purpose of 268323208 marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such cessation Collateral; (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets; (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Ati Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of Required Lenders all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Section 10.7(vii) hereof, the obligation of L▇▇▇▇▇▇ to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and during the continuance of any Event of Default, Agent shall have the right to exercise any and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at Applicable Law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process, as permitted by Applicable Law. Upon the occurrence and during the continuance of any Event of Default Solar Cell Ownerand as permitted by Applicable Law, Agent may enter any of Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. Upon the occurrence and during the continuance of any Event of Default and as permitted by Applicable Law, with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, and as permitted by Applicable Law, Agent shall have give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and remedies hereinafter set forthequities are hereby expressly waived and released by each Loan Party, as permitted by Applicable Law. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory in any channel of distribution deemed reasonable by Agent, and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be distinctapplied to the Obligations as determined by Agent under Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, separate Borrowers shall remain liable to Agent and cumulative Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner (but subject to applicable Mexican Law), each Borrower acknowledges and shall agrees that it is not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
commercially unreasonable for Agent: (i) Majority Owners may terminate this Cell Owner Agreement to fail to incur expenses reasonably deemed significant by providing written notice of termination Agent to Sun-Ex, prepare Collateral for disposition or otherwise to complete raw material or work in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
process into finished goods or other finished products for disposition; (ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by a suit other law, to fail to obtain governmental or suits in equity or at law third party consents for the specific performance collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any covenant adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or agreement contained hereinthrough the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or for the enforcement that match buyers and Borrowers of any other appropriate legal assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or equitable remedyquiet enjoyment, including recovery (xi) to purchase insurance or credit enhancements to insure Agent against risks of all moneys due loss, collection or disposition of Collateral or to become due provide to Agent a guaranteed return from Sun-Ex under the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the provisions Collateral. Each Borrower acknowledges that the purpose of this Cell Owner Agreement;
(iiiSection 11.1(b) Majority Owners may apply any security deposit is to provide non-exhaustive indications of what actions or any portion thereof to cure any default; and
(iv) If omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Cell Owner Agreement is determined to be a secured credit facilitySection 11.1(b). Without limitation upon the foregoing, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default nothing contained in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell OwnerSection 11.1(b) shall be deemed construed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due grant any rights to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default any Borrower or to continue and complete impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the correction thereof within the cure periods set forth in absence of this Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement11.1(b).
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit, Security and Guaranty Agreement (ZRCN Inc.)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of: (i) an Event of Default pursuant to Section 10.7, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, and (ii) any of the other Events of Default and at any time thereafter, at direction of Agent or Required Lenders, all Obligations shall, by written notice to Borrowing Agent, be immediately due and payable and Agent or Required Lenders shall have the right to terminate the obligation of Lenders to make Advances. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. At any time following the occurrence and during the continuance of an Event of Default, Agent shall have the right to send notice of the assignment of, and Agent's security interest in and Lien on, the Receivables to any and all Customers or any third-party holding or otherwise concerned with any of the Collateral. At any time after the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to collect the Receivables, take possession of the Collateral, or both. Agent's actual out-of-pocket collection expenses may be charged to Borrowers' Account and added to the Obligations. Agent may enter any of any Credit Party's premises or other premises without legal process and without incurring liability to any Credit Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Credit Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirementstype customarily sold on a recognized market, Agent shall give Credit Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Credit Party. In connection with the exercise of the foregoing remedies upon the occurrence and during the continuance of an Event of Default, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty-free, nonexclusive license and Agent is granted permission to use all of each Credit Party's (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Credit Parties shall remain liable to Agent and the other Secured Parties therefor.
33.2 No default (b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Credit Party acknowledges and agrees that it is not commercially unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third-party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third-party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the performance same business as any Credit Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the termstypes included in the Collateral or that have the reasonable capacity of doing so, covenants or conditions that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. Each Credit Party acknowledges that the purpose of this Cell Owner Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights to any Credit Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 11.1(b).
(c) Agent may seek the appointment of a receiver, receiver-manager or keeper (a "Receiver") under the laws of Canada or any province thereof to take possession of all or any portion of the Collateral of Credit Parties or to operate same and, to the maximum extent permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed agent of the Credit Parties and not Agent and Lenders, and Agent and Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sun-Ex any such Receiver, his/her servants or Solar Cell Owner) employees. Subject to the provisions of the instrument appointing him/her, any such Receiver shall have power to take possession of Collateral of the Credit Parties, to preserve Collateral of the Credit Parties or its value, to carry on or concur in carrying on all or any part of the business of the Credit Parties and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral of the Credit Parties. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including the Credit Parties, enter upon, use and occupy all premises owned or occupied by the Credit Parties wherein Collateral of the Credit Parties may be situated, maintain Collateral of the Credit Parties upon such premises, borrow money on a secured or unsecured basis and use Collateral of the Credit Parties directly in carrying on the Credit Parties' business or as security for loans or advances to enable the Receiver to carry on the Credit Parties' business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her appointment shall be deemed received in trust for and paid over to continue if Agent. Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and so long as Solar Cell Owner powers of Agent and Lenders. Agent may, either directly or Sun-Exthrough its nominees, as exercise any or all powers and rights given to a Receiver by virtue of the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying foregoing provisions of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementparagraph.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Rights and Remedies. 33.1 Upon (a) In the event of occurrence of any Event of Default Solar Cell Owner(as defined in the Note) CEV may, shall have at its sold option, within the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner longer of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice sixty (60) days after such Event of termination to Sun-Ex, in which event the Term shall end, Default and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce thirty (30) days after the provisions determination of this Cell Owner Agreement Fair Market Value (as hereinafter defined) of the Equity Interest, upon ten (10) days' written notice to Pledgor, but without any other demand or notice whatsoever, transfer the Equity Interest to CEV, such Equity Interest to be so transferred at the Fair Market Value thereof to the extent required to pay the remaining unpaid balance of principal, interest and may enforce other obligations hereunder and protect under the rights Note, such transfer to be free and clear of Solar Cell Owners any right or equity of redemption, which right or equity is hereby expressly waived and released. If the Fair Market Value of the Equity Interest transferred is less than the full amount of remaining unpaid principal, interest and other obligations hereunder by a suit or suits in equity or at law and under the Note, Pledgor shall remain liable for the specific performance remaining amount due and shall pay such amount to CEV immediately. The right of any covenant or agreement contained hereinCEV 2 provided in this paragraph is in addition to, or for the enforcement of any and not in lieu of, all other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners rights that CEV may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of have as a secured party under Legal Requirementsat law or otherwise.
33.2 No default in (b) In the performance event shares of the termsEquity Interest are transferred pursuant to paragraph (a) above in payment of liabilities of Pledgor under the Note and hereunder for principal, covenants or conditions of this Cell Owner Agreement on interest and other obligations under the part of Sun-Ex or Solar Cell Owner) Note and hereunder, such transfer shall be deemed applied first to continue if liabilities for interest, then to other obligations under the Note and so long as Solar Cell Owner or Sun-Exhereunder, as and then to the case may be, liability for principal.
(c) The Fair Market Value of each share of Equity Interest shall be delayed in or prevented from remedying determined by the same due to Force Majeure; but if and when the occurrence or condition Management Committee of CEV, which delayed or prevented the remedying of such default shall cease or be removed, it determination shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, promptly reported in writing to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementPledgor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Rights and Remedies. 33.1 (a) During the continuance of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(g)), all Obligations shall be immediately due and payable accruing interest at the Default Rate, and this Agreement and the obligation of Lender to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, at the option and written demand of Lender, all Obligations shall be immediately due and payable and Lender shall have the right to terminate this Agreement and to terminate the obligation of Lender to make Advances; and (iii) without limiting Section 8.2 hereof, any Default under Sections 10.7(g) hereof, the obligation of Lender to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence and continuance of any Event of Default Solar Cell OwnerDefault, upon prior written notice to Borrower, Lender shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the other Loan Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial or non-judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process, including at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Lender may elect. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order determined by Lender in its sole discretion. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrower shall remain liable to Lender therefor. Notwithstanding anything to the contrary contained herein to the contrary, upon the occurrence and continuance of any Event of Default, Lender may sell, or direct any Custodian to sell, any bitcoin, Forked Assets or other digital assets in the Collateral Account without (i) any notice to Borrower, however, Lender will use commercially reasonable efforts to provide Borrower with concurrent notice, (ii) any publication of notice about a secured party under Legal Requirementssale of such assets, it being acknowledged by Borrower that highly liquid and efficient markets exist for the sale of bitcoin, or (iii) any obligation to account to Borrower for any losses caused by Lender’s decision to liquidate such Collateral.
33.2 No default (b) To the extent that Applicable Law imposes duties on Lender to exercise remedies in a commercially reasonable manner, Borrower acknowledges and agrees that it is not commercially unreasonable for Lender: (i) [reserved]; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to remove Liens on or any adverse claims against Collateral; (iv) [reserved]; (v) to contact other Persons, whether or not in the performance same business as Borrower, for expressions of interest in acquiring all or any portion of such Collateral; (vi) to hire one or more market makers and/or brokers specializing in digital asset transactions to assist in the disposition of Collateral; (vii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the termstypes included in the Collateral or that have the reasonable capacity of doing so, covenants or conditions that match buyers and sellers of this Cell Owner Agreement on assets; (viii) to dispose of assets in wholesale rather than retail markets; (ix) to disclaim disposition warranties, such as title, possession or quiet enjoyment; (x) to purchase insurance or credit enhancements to insure Lender against risks of loss, collection or disposition of Collateral or to provide to Lender a guaranteed return from the part collection or disposition of Sun-Ex Collateral; or Solar Cell Owner(xi) shall be to the extent deemed appropriate by the Lender, to continue if obtain the services of other brokers, investment bankers, consultants and so long as Solar Cell Owner other professionals to assist Lender in the collection or Sun-Ex, as disposition of any of the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when Collateral. Upon the occurrence and continuance of any Event of Default, Lender shall have the right to exercise any and all rights and remedies provided for herein, under the other Loan Documents, under the Uniform Commercial Code and at law or condition which delayed equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or prevented all of the remedying of such default shall cease Collateral with or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementjudicial process.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence and during the continuation of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower's (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent's exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by applicable law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Brightstar Corp.)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of Obligations and any fees payable under this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrowers shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Pc Service Source Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.6, all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) any of the other Events of Default and at any time thereafter, Agent may (and at the direction of Required Lenders, shall) declare that all or any portion of the Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate or limit the obligation of Lenders to make Advances (including, without limitation, reducing the lending formulas or amounts of Revolving Advances and Letters of Credit available to the Borrowers), and (iii) a filing of a petition against any Loan Party in any involuntary case under any state, federal or other bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Loan Party. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, which shall be distinctunder the UCC, separate PPSA and cumulative at law or equity generally, including, without limitation, the right to foreclose the Liens granted herein and shall not operate in the Other Documents and to exclude realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or deprive Solar Cell Owner all of the Collateral with or without judicial process. Subject to the terms of any Collateral Access Agreement, Agent may enter any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion, without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Loan Parties at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. Agent may specifically disclaim any warranties of title or remedy allowed it by law:the like at any sale of Collateral. In connection with the exercise of the foregoing remedies, Agent shall have the right to use all of each Loan Party’s Intellectual Property and other proprietary rights (subject to any licenses and other usage rights therein granted in favor of other Persons) which are used in connection with (A) Inventory for the purpose of disposing of such Inventory and (B) Equipment for the purpose of completing the manufacture of unfinished goods, in each case without any obligation to compensate any Loan Party therefor.
(ib) Majority Owners Agent may terminate this Cell Owner Agreement by providing written notice seek the appointment of termination a receiver, a manager, a receiver-manager or a receiver and manager (a “Receiver”) under the laws of Canada or any province thereof to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery take possession of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the termsCanadian Collateral or to operate same and, covenants to the maximum extent permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or conditions a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed agent of this Cell Owner Agreement Canadian Loan Parties and not Agent and the Lenders, and Agent and the Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sun-Ex any such Receiver, his/her servants or Solar Cell Owner) employees. Subject to the provisions of the instrument appointing him/her, any such Receiver shall have power to take possession of Canadian Collateral of a Canadian Loan Party, to preserve Canadian Collateral or its value, to carry on or concur in carrying on all or any part of the business of a Canadian Loan Party and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Canadian Collateral. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including a Canadian Loan Party, enter upon, use and occupy all premises owned or occupied by a Canadian Borrower wherein Canadian Collateral may be situated, maintain Canadian Collateral upon such premises, borrow money on a secured or unsecured basis and use Canadian Collateral directly in carrying on a Canadian Loan Party’s business or as security for loans or advances to enable the Receiver to carry on a Canadian Loan Party’s business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her appointment shall be deemed received in trust for and paid over to continue if Agent. Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and so long as Solar Cell Owner powers of Agent and the Canadian Lenders. Agent may, either directly or Sun-Exthrough its nominees, as exercise any or all powers and rights given to a Receiver by virtue of the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying foregoing provisions of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreementparagraph.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of the Borrower's premises or other premises without legal process and without incurring liability to the Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Borrower to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give the Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by the Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of the Borrower's (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods and, in furtherance of the foregoing grant, to the extent any such trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory consist of Excluded Property, or are otherwise not able to be licensed by the Borrower to the Agent, the Borrower shall use its best commercial efforts to cause all necessary consents to be given for the purposes set forth above. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, the Borrower acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Borrower, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. The Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by Agent would not be commercially unreasonable in Agent's exercise of remedies against the Collateral and that other actions or omissions by Agent shall continue to run not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon such cessation or removal. Howeverthe foregoing, if the Force Majeure event causes a delay for more than one hundred eighty (180nothing contained in this Section 11.1(b) days, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from construed to grant any rights to any Loan Party or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Horsehead Holding Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7, 10.8 or 10.9 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower.
(b) Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Administrative Agent shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate right to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endexercise, and all right, title and interest of Sun-Ex hereunder shall expire on at the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any direction of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply Required Lenders shall exercise, any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Administrative Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Administrative Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Administrative Agent may deem advisable and Administrative Agent may require Borrowers to make the Collateral available to Administrative Agent at a convenient place. With or without having the Collateral at the time or place of sale, Administrative Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Administrative Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirementstype customarily sold on a recognized market, Administrative Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Administrative Agent or any Lender may bid for and become the purchaser, and Administrative Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower.
33.2 No default (c) In connection with the exercise of the foregoing remedies, including without limitation, the sale of Inventory, Administrative Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and permission to use all of each Borrower’s trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with (i) Inventory for the purpose of selling or otherwise disposing of such Inventory and (ii) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Administrative Agent and Lenders therefor.
(d) To the extent that Applicable Law imposes duties on the Administrative Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Administrative Agent (i) to fail to incur expenses reasonably deemed significant by the Administrative Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Administrative Agent against risks of loss, collection or disposition of Collateral or to provide to the Administrative Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Administrative Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Administrative Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(d) is to provide non-exhaustive indications of what actions or omissions by the Administrative Agent would not be commercially unreasonable in the Administrative Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Administrative Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(d). Without limitation upon the foregoing, nothing contained in this Section11.1(d) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Administrative Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(d).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Comforce Corp)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default ------------------- pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws, the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over any Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower's premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowers at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission by Borrowers to use all of each Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of Obligations and any fees payable under this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrowers shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Air Methods Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Loan Party in any involuntary case under any state, provincial or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Loan Party. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, under the PPSA and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of the Borrower’s premises or other premises without legal process and without incurring liability to the Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require the Borrower to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirementstype customarily sold on a recognized market, Agent shall give the Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by the Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of the Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods and, in furtherance of the foregoing grant, to the extent any such trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory are not able to be licensed by the Borrower to the Agent, the Borrower shall use its best commercial efforts to cause all necessary consents to be given for the purposes set forth above. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor.
33.2 No default in (b) Agent may seek the performance appointment of a receiver, receiver-manager or keeper (a “Receiver”) under the laws of Canada or any Province thereof to take possession of all or any portion of the termsCollateral of Loan Parties or to operate same and, covenants to the maximum extent permitted by law, may seek the appointment of such a receiver without the requirement of prior notice or conditions a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed agent of this Cell Owner Agreement Loan Parties and not Agent and the Lenders, and Agent and the Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sunany such Receiver, his/her servants or employees. Subject to the provisions of the instrument appointing him/her, any such Receiver shall have power to take possession of Collateral of the Loan Parties, to preserve Collateral of the Loan Parties or its value, to carry on or concur in carrying on all or any part of the business of the Loan Parties and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral of the Loan Parties. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including the Loan Parties, enter upon, use and occupy all premises owned or occupied by the Loan Parties wherein Collateral of the Loan Parties may be situated, maintain Collateral of the Loan Parties upon such premises, borrow money on a secured or unsecured basis and use Collateral of the Loan Parties directly in carrying on the Loan Parties’ business or as security for loans or advances to enable the Receiver to carry on the Loan Parties’ business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her appointment shall be received in trust for and paid over to Agent. Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and powers of Agent and the Lenders. Agent may, either directly or through its nominees, exercise any or all powers and rights given to a Receiver by virtue of the foregoing provisions of this paragraph.
(c) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, the Borrower acknowledges and agrees that it is not commercially unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Borrower, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any of the Collateral. The Borrower acknowledges that the purpose of this Section 11.1(c) is to provide non-Ex exhaustive indications of what actions or Solar Cell Owneromissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(c). Without limitation upon the foregoing, nothing contained in this Section 11.1(c) shall be deemed construed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due grant any rights to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default any Loan Party or to continue and complete impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the correction thereof within the cure periods set forth in absence of this Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement11.1(c).
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Horsehead Holding Corp)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and the Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Upon the occurrence and the continuance of an Event of Default, Agent may enter any of Borrower's premises or other premises without legal process and without incurring liability to Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use (a) all of Borrower's trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any defaultObligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on Borrower shall remain liable to Agent and the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Candies Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence and during the continuance of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated (ii) any of the other Events of Default and at any time thereafter during the continuance thereof, at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents (including the foreign security agreements), under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (SMTC Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.5 hereof, all Obligations shall be immediately due and payable (including, without limitation, any fees pursuant to Section 13.1 hereof, if applicable) and this Agreement and the Commitments shall be deemed terminated, and (ii) any of the other Events of Default and at any time thereafter when any such other Event of Default is continuing, at the direction of Required Lenders all Obligations shall be immediately due and payable (including, without limitation, any fees pursuant to Section 13.1 hereof, if applicable) and Required Lenders shall have the right to instruct Agent to terminate this Agreement and to terminate the Commitment Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, Agent shall have have, at the rights direction of Required Lenders, the right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Subject to the foregoing, Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) Business Days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, upon the occurrence and during the continuance of an Event of Default, Agent is granted a perpetual non-revocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory (but not any other Intellectual Property of any Borrower) and (b) equipment for the purpose of completing the manufacture of unfinished goods (but not any other equipment of any Borrower). The Net Cash Proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Non-cash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, if any, which Borrowers shall continue remain liable to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementAgent and Lenders therefor.
33.3 Such expenses owed by (b) To the Solar Cell Owners shall be Project Expenses extent that Applicable Law imposes duties on Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and may be paid from the Consumer Rentals.agrees that it is not commercially unreasonable for Agent: (i) to fail to exercise collection remedies against 57
Appears in 1 contract
Sources: Loan and Security Agreement (United States Steel Corp)
Rights and Remedies. 33.1 Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Revolving Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Revolving Advances and (iii) a filing of a petition against Borrower in any involuntary case under any state or federal bankruptcy laws the obligation of Lenders to make Revolving Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the right to exercise any and all other rights and remedies hereinafter set forthprovided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of Borrower's premises or other premises without legal process and without incurring liability to Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrower to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrower reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least five (5) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by Borrower. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of Borrower's (a) trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The proceeds realized from the sale of any Collateral shall be distinctapplied as follows: first, separate to the reasonable costs, expenses and cumulative attorneys' fees and shall not operate expenses incurred by Agent for collection and for acquisition, completion, protection, removal, storage, sale and delivery of the Collateral; second, to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under upon any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any defaultObligations; and
(iv) If this Cell Owner Agreement is determined , third, to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance principal of the termsObligations. If any deficiency shall arise, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) Borrower shall be deemed remain liable to continue if Agent and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementLenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Fonda Group Inc)
Rights and Remedies. 33.1 (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time thereafter (such default not having previously been cured), at the option of Required Lenders all Obligations shall be immediately due and payable and Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a petition against any Borrower in any involuntary case under any state or federal bankruptcy laws, all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances hereunder shall be terminated other than as may be required by an appropriate order of the bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of Default Solar Cell OwnerDefault, Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s premises or other premises without legal process and without incurring liability to any Borrower therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, patents, patent applications, copyrights, service marks, licenses, franchises and other proprietary rights which are used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially unreasonable for the Agent (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if anynot required by other law, which shall continue to run upon fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Borrower, for expressions of interest in acquiring all or any portion of such cessation Collateral, (vii) to hire one or removal. Howevermore professional auctioneers to assist in the disposition of Collateral, if whether or not the Force Majeure event causes Collateral is of a delay specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for more the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than one hundred eighty retail markets, (180x) daysto disclaim disposition warranties, Majority Owners may terminate this Cell Owner Agreement.
33.3 Such expenses owed such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Solar Cell Owners Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or omissions by the Agent would not be commercially unreasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be Project Expenses and may be paid from construed to grant any rights to any Borrower or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the Consumer Rentalsabsence of this Section 11.1(b).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Merisel Inc /De/)
Rights and Remedies. 33.1 Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations (including, without limitation, the Prepayment Premium, if any) shall be immediately due and payable and (ii) any of the other Events of Default and at any time thereafter, at the option of Administrative Agent or at the direction of Required Lenders all Obligations (including, without limitation, the Prepayment Premium, if any) shall be immediately due and payable. Upon the occurrence and during the continuance of any Event of Default Solar Cell OwnerDefault, (x) Administrative Agent shall have the rights right to exercise any and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code and at law or equity generally, including the right to cause Collateral Agent to foreclose the security interests granted pursuant to the Collateral Documents and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process, (y) Collateral Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Collateral Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Collateral Agent may deem advisable and Administrative Agent may require the Loan Parties to make the Collateral available to Collateral Agent at a convenient place, and (z) with or without having the Collateral at the time or place of sale, Collateral Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Collateral Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a secured party under Legal Requirements.
33.2 No default type customarily sold on a recognized market, Collateral Agent shall give the Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrower at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Administrative Agent or any Lender may bid (including credit bid) for and become the purchaser, and Administrative Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Collateral Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Collateral Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is owned by the Loan Parties (or which the Loan Parties otherwise have the right to permit Collateral Agent to use) and used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral collected or received by Administrative Agent shall be applied to the Obligations in the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods order set forth in Section 3211.5 hereof, if anysubject to the ABL Intercreditor Agreement. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, which the Loan Parties shall continue remain liable to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner AgreementAdministrative Agent and Lenders therefor.
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (New Enterprise Stone & Lime Co., Inc.)
Rights and Remedies. 33.1 Upon the occurrence of (a) If any Event of Default Solar Cell Ownershall have occurred and be continuing, all payments thereafter received by the Pledgor under or in connection with the Pledged Collateral shall be received in trust for the benefit of the Agent, shall be segregated from other funds of the Pledgor and shall be forthwith paid over to the Agent in the same form as so received (with any necessary endorsement).
(b) If an Event of Default shall have occurred and be continuing, (i) the Agent shall have the rights right to exercise all voting, consensual and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate other powers of ownership pertaining to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall endStock Collateral, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce all payments thereafter made to the Pledgor in respect of the Pledged Collateral and received by the Agent in accordance with the provisions of this Cell Owner Agreement or otherwise, and all proceeds of the Pledged Collateral received by the Agent pursuant to paragraph (c) below, may enforce and protect (x) be held by the rights of Solar Cell Owners hereunder by a suit or suits in equity Agent as collateral for the Secured Obligations and/or (y) then or at law for anytime thereafter during the specific performance continuance of any covenant or agreement contained hereinsuch Event of Default, or for be applied thereto in accordance with the enforcement provisions of any other appropriate legal or equitable remedy, including recovery Section 4.09 of all moneys due or to become due from Sun-Ex under the Security Agreement.
(c) If (i) an Event of Default shall have occurred and be continuing and (ii) any of the provisions of Secured Obligations shall have been declared to be, or shall have become, due and payable then, in addition to any other rights and remedies provided for herein or which may otherwise be available, the Agent may, without any further demand, advertisement or notice (except as expressly provided for below in this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facilitySection 11(c)), Majority Owners may exercise all the rights and remedies of a secured party under Legal Requirements.
33.2 No default the UCC (whether or not the UCC applies to the affected Pledged Collateral), and in addition, (x) may apply the performance of the terms, covenants or conditions of this Cell Owner Agreement on the part of Sun-Ex or Solar Cell Owner) shall be deemed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default or to continue and complete the correction thereof within the cure periods set forth in Section 32moneys, if any, then held by it as part of the Pledged Collateral, for the purposes and in the order provided in Section 4.09 of the Security Agreement and (y) if there shall be no such moneys or the moneys so applied shall be insufficient to satisfy in full all Secured Obligations, may sell the Pledged Collateral, or any part thereof, as hereinafter provided in this Section 11(c) and otherwise to the fullest extent permitted by law. The Pledged Collateral may be sold in one or more sales, at public or private sale, conducted by any officer or agent of, or auctioneer or attorney for, the Agent, at the Agent's place of business or elsewhere, for cash, upon credit or for other property, for immediate or future delivery, and at such price or prices and on such terms as the Agent shall deem appropriate. Any of the Purchasers may be a purchaser of any or all of the Pledged Collateral so sold at a public sale and, to the extent permitted by law, at a private sale, and thereafter hold the same, absolutely, free from any right or claim of whatsoever kind, and, the obligations of the Pledgor to such purchaser may be applied as a credit against the purchase price. The Agent may, in its sole discretion, at any such sale restrict the prospective bidders or purchasers as to their number, nature of business and investment intention. Upon any public or private sale the Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Pledged Collateral so sold. Each purchaser (including the Agent or any of the other Purchasers) at any such sale shall hold the Pledged Collateral so sold, absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, of the Pledgor, and the Pledgor hereby specifically waives, to the full extent it may lawfully do so, all rights of redemption, stay or appraisal that it has or may have under any rule of law or statute now existing or hereafter adopted. The Agent shall give the Pledgor at least ten days' notice (which the Pledgor agrees is reasonable notification within the meaning of Section 9-504(3) of the UCC) of any such public or private sale. Such notice shall continue state the time and place fixed for such sale. Any sale shall be held at such time or times within ordinary business hours as the Agent shall fix in the notice of such sale. At any such sale the Pledged Collateral may be sold in one lot as an entirety or in separate parcels. The Agent shall not be obligated to run make any sale pursuant to any such notice. The Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for such sale, and any such sale may be made at any time or place to which the same may be so adjourned without further notice or publication. In case of any sale of all or any part of the Pledged Collateral on credit or for future delivery, the Pledged Collateral so sold may be retained by the Agent until the full selling price is paid by the purchaser thereof, but neither the Agent nor any of the other Purchasers shall incur any liability in case of the failure of such purchaser to take up and pay for the Pledged Collateral so sold, and, in case of any such failure, such Pledged Collateral may again be sold pursuant to the provisions hereof. All cash proceeds of any such sale, and any other realization upon all or any part of the Pledged Collateral, shall be held or applied by the Agent in the manner provided in Section 4.09 of the Security Agreement.
(d) Instead of exercising the power of sale provided in Section 11(c) hereof, the Agent may proceed by a suit or suits at law or in equity to foreclose the Lien under this Agreement and sell the Pledged Collateral or any portion thereof under a judgment or decree of a court or courts of competent jurisdiction.
(e) The Agent as attorney-in-fact pursuant to Section 9 hereof may, in the name and stead of the Pledgor, make and execute all conveyances, assignments and transfers of the Pledged Collateral sold pursuant to Section 11(c) or Section 11(d) hereof, and the Pledgor hereby ratifies and confirms all that the Agent, as said attorney-in-fact, shall do by virtue hereof. Nevertheless, the Pledgor shall, if so requested by the Agent, ratify and confirm any sale or sales by executing and delivering to the Agent, or to such cessation purchaser or removalpurchasers, all such instruments as may, in the reasonable judgment of the Agent, be advisable for the purpose.
(f) The receipt by the Agent of the purchase money paid at any sale made by it shall be a sufficient discharge therefor to any purchaser of the Pledged Collateral, or any portion thereof, sold as aforesaid; and no such purchaser (or the representatives or assigns of such purchaser), after paying such purchase money and receiving such receipt, shall be bound to see to the application of such purchase money or any part thereof or in any manner whatsoever be answerable for any loss, misapplication or nonapplication of any such purchase money, or any part thereof, or be bound to inquire as to the authorization, necessity, expediency or regularity of any such sale.
(g) The Agent shall incur no liability as a result of the sale of the Pledged Collateral, or any part thereof, at any private sale conducted in a commercially reasonable manner in accordance with the terms of this Agreement and applicable law. HoweverThe Pledgor hereby waives, to the full extent permitted by applicable law, any claims against any of the Purchasers arising by reason of the fact that the price at which the Pledged Collateral, or any part thereof, may have been sold at a private sale to an unrelated third party in an arm's length transaction was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Secured obligations, even if the Agent accepts the first offer received which the Agent in good faith deems to be commercially reasonable under the circumstances and ▇▇▇▇ ▇▇▇ ▇ffer the Pledged Collateral to more than one offeree. To the fullest extent permitted by law, the Pledgor shall have the burden of proving that any such sale of the Pledged Collateral was conducted in a commercially unreasonable manner.
(h) It is the express understanding and intent of the parties that, as to any personal property interests subject to Article 9 of the UCC, the Agent, upon the occurrence of an Event of Default, may proceed under the UCC or may proceed as to both real and personal property interests in accordance with the provisions of any mortgages and treat both real and personal property interests as one parcel or package of security.
(i) Each and every right and remedy of the Agent shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Security Agreement or Purchase Agreement or now or hereafter existing at law or in equity or by statute.
(j) If the proceeds of any sale, collection, liquidation or other realization of or upon the Pledged Collateral are not sufficient to cover the costs and expenses of such realization and the payment in full of the Secured Obligations, the Agent or any other of the Purchasers shall have the right to proceed against the Pledgor for any such deficiency. Furthermore, if the Force Majeure event causes a delay for more than one hundred eighty (180) daysproceeds of the any sale exceed the costs and expenses of the realization and the payment in full of the Secured Obligations, Majority Owners may terminate this Cell Owner Agreementthe balance of the proceeds from such sale shall be paid over to the Pledgor, as promptly thereafter as practicable.
33.3 Such expenses owed (k) The Pledgor recognizes that, by reason of certain prohibitions contained in the Solar Cell Owners Securities Act of 1933, as amended, and applicable state securities laws, the Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sale to an unrelated third party in an arm's length transaction may be at prices and on terms less favorable to the Agent than those obtainable through a public sale without such restrictions, provided that any such private sale shall be Project Expenses conducted in a commercially reasonable manner. Notwithstanding anything in this paragraph (k) to the contrary, the Agent shall have no obligation to engage in public sales and may be paid from no obligation to delay the Consumer Rentalssale of any Pledged Collateral for the period of time necessary to register it for public sale.
Appears in 1 contract
Sources: Pledge Agreement (Visual Data Corp)
Rights and Remedies. 33.1 (a) Upon the occurrence of: (i) an Event of Default pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations (other than Hedge Liabilities and Cash Management Liabilities) shall be immediately due and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed terminated, (ii) during the continuance of any of the other Events of Default and at any time thereafter, at the option of Agent or at the direction of US-Canada Required Lenders, all Obligations (other than Hedge Liabilities and Cash Management Liabilities) shall be immediately due and payable and Agent or US-Canada Required Lenders shall have the right to terminate this Agreement and to terminate the obligation of Lenders to make Advances; and (iii) without limiting Section 8.3 hereof, any Default under Section 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be suspended until such time as such involuntary petition shall be dismissed. During the continuance of any Event of Default, the Agent shall have the right to exercise any and all rights and remedies provided for herein, under the Other Documents, under the Uniform Commercial Code, under the PPSA under the terms of the Collateral Documents and at law or equity generally, including the right to foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process. Agent may enter any of any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require any or each of Loan Parties to make the Collateral available to Agent at a convenient place. During the continuance of an Event of Default with or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give any or each of Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid (including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted permission to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall remain liable to Agent and Lenders therefor. Upon the occurrence of any an Event of Default Solar Cell Ownerwhich is continuing, shall have Agent may seek the rights and remedies hereinafter set forthappointment of a receiver, which shall be distinctreceiver-manager, separate and cumulative and shall not operate monitor or keeper (a “Receiver”) under the laws of Canada or any Province thereof including to exclude or deprive Solar Cell Owner of any other right or remedy allowed it by law:
(i) Majority Owners may terminate this Cell Owner Agreement by providing written notice of termination to Sun-Ex, in which event the Term shall end, and all right, title and interest of Sun-Ex hereunder shall expire on the date stated in such notice;
(ii) Majority Owners may enforce the provisions of this Cell Owner Agreement and may enforce and protect the rights of Solar Cell Owners hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, including recovery take possession of all moneys due or to become due from Sun-Ex under any of the provisions of this Cell Owner Agreement;
(iii) Majority Owners may apply any security deposit or any portion thereof to cure any default; and
(iv) If this Cell Owner Agreement is determined to be a secured credit facility, Majority Owners may exercise all rights and remedies of a secured party under Legal Requirements.
33.2 No default in the performance of the termsCollateral of Canadian Loan Parties or to operate same and, covenants to the maximum extent permitted by Applicable Law, may seek the appointment of such a receiver without the requirement of prior notice or conditions a hearing. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed agent of this Cell Owner Agreement such Loan Parties and not Agent and the Lenders, and Agent and the Lenders shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of Sunany such Receiver, his/her servants or employees. Subject to the provisions of the instrument appointing him/her, any such Receiver shall have power to take possession of Collateral of the Canadian Loan Parties, to preserve Collateral of such Loan Parties or its value, to carry on or concur in carrying on all or any part of the business of such Loan Parties and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral of such Loan Parties. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including the Canadian Loan Parties, enter upon, use and occupy all premises owned or occupied by such Loan Parties wherein Collateral of such Loan Parties may be situated, maintain Collateral of such Loan Parties upon such premises, borrow money on a secured or unsecured basis and use Collateral of the Loan Parties directly in carrying on such Loan Parties business or as security for loans or advances to enable the Receiver to carry on such Loan Parties’ business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by Agent, all money received from time to time by such Receiver in carrying out his/her appointment shall be received in trust for and paid over to Agent. Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and powers of Agent and the Lenders. Agent may, either directly or through its nominees, exercise any or all powers and rights given to a Receiver by virtue of, and in accordance with, the foregoing provisions of this paragraph and Applicable Law.
(b) To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that it is not commercially unreasonable for the Agent: (i) to fail to incur expenses reasonably deemed significant by the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition; (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral; (iv) to exercise collection remedies against Customers and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists; (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same business as any Loan Party, for expressions of interest in acquiring all or any portion of such Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-Ex exhaustive indications of what actions or Solar Cell Owneromissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b) shall be deemed construed to continue if and so long as Solar Cell Owner or Sun-Ex, as the case may be, shall be delayed in or prevented from remedying the same due grant any rights to Force Majeure; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Solar Cell Owner or Sun-Ex, as the case may be, without further delay, to commence the correction of such default any Loan Party or to continue and complete impose any duties on the correction thereof within Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the cure periods set forth in absence of this Section 32, if any, which shall continue to run upon such cessation or removal. However, if the Force Majeure event causes a delay for more than one hundred eighty (180) days, Majority Owners may terminate this Cell Owner Agreement11.1(b).
33.3 Such expenses owed by the Solar Cell Owners shall be Project Expenses and may be paid from the Consumer Rentals.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Invacare Corp)