Rights Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other: (a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party"); (b) declare the Note to be immediately due and payable; (c) use and apply any monies deposited in the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless of the purpose for which the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is due and owing to Lender or to operate the Property or for any other purposes described herein or in any other Loan Document; (d) institute an action, suit or proceeding at law or in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and (e) set-off against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lender.
Appears in 1 contract
Sources: Loan Agreement (Golf Ventures Inc)
Rights Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(ai) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated PartyOBLIGATED PARTY");
(bii) declare the Note to be immediately due and payable;
(ciii) use and apply any monies deposited in the Clearing Account, the Cash Collateral Collection Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless of the purpose for which the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is due and owing to Lender or to operate the Property Properties or for any other purposes described herein or in any other Loan Document;
(div) institute an action, suit or proceeding at law or in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and
(ev) set-off setoff against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lender.
Appears in 1 contract
Rights Upon Event of Default. Upon Subject and subordinate in all respects to the rights, powers and prerogatives of the relevant Agency under its Acknowledgment Agreement and Agency Guidelines, if any Event of Default shall occur and be continuing, Bank may, without notice during the occurrence and during the continuance of any such Event of Default, Lender shallterminate the Commitment and declare the Indebtedness or any part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by B▇▇▇▇▇▇▇; provided, however, that upon the occurrence of an Event of Default under Section 9.5 or Section 9.6, the Commitment shall automatically terminate, and the Indebtedness shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by B▇▇▇▇▇▇▇. Subject to the rights, powers and prerogatives of the relevant Agency under its Acknowledgment Agreement and Agency Guidelines, if any Event of Default shall occur and be continuing, Bank may exercise all rights and remedies available to it in addition to all other remedies conferred upon Lender at law Law or in equity or by equity, under the terms of the Note, the Mortgage and the other Loan Documents, have the right but not the obligationor otherwise, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any otherincluding without limitation:
(a) in its discretion, to demand, sue for, collect or receive and receipt for (in its own name, in the name of Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b) direct, and to take any action whichand all other steps necessary to cause, in Lender's sole judgment, is necessary or appropriate to effect observance and performance any Servicer of any of the covenants, agreements and obligations Collateral to pay over directly to Bank for the account of Borrower (under this Agreement and the other Loan Documents) instead of Borrower, the Guarantors, to Borrower or any other person providing collateral Person) all sums from time to time due to Borrower and to take any and all other actions that Borrower or Bank has the right to take under Borrower’s contract with such Servicer;
(c) direct Borrower to pay over to Bank all sums from time to time due Borrower under or in respect of the Collateral, including any and all fees and other compensation under the Servicing Agreements for servicing the Serviced Loans and all amounts paid to or collectable by Borrower in connection with the Pledged Servicing Rights, whether paid to Borrower or withheld or recovered by Borrower from collections and realizations on such Mortgage Loans or any other source, and to take any and all other actions that, subject to any restrictions imposed by the relevant Servicing Agreement for the benefit of the party to it on whose behalf the Mortgage Loans are being serviced (to the extent that such restrictions are valid and enforceable under the applicable Code and other Laws), Borrower or Bank has the right to take under that Servicing Agreement, and if Bank does so request, then Borrower shall diligently and continuously thereafter comply with such request. All amounts so received and collected by Bank pursuant to this Section 10.1 shall be applied in the same order and manner as is specified in Section 10.2.1;
(d) foreclose upon or otherwise enforce its security interest in and Lien on the Collateral, or on such portions or elements of the Collateral as Bank shall elect to proceed against from time to time, in each case by any lawful means;
(e) at Bank’s option and in its sole discretion, to notify any or all Makers obligated under any or all items of Collateral, that the Collateral has been assigned to Bank and that all payments thereon are to be made directly to Bank or such other Person as may be designated by the Bank; settle, compromise, or release, in whole or in part, any amounts owing on the Collateral or any portion of the Collateral, on terms acceptable to Bank; enforce payment and performance and prosecute any action or proceeding with respect to any and all Collateral; and where any such Collateral is in default, foreclose on and enforce Liens or security interests in, such Collateral by any lawful judicial procedure or without judicial process and sell property acquired as a result of any such foreclosure;
(f) subject in all respects to any applicable Agency Guidelines, act, or contract with one or more third Persons to act, as Servicer of each item of Collateral requiring servicing and perform all obligations required in connection with any Servicing Agreements to which Borrower is a party, and Borrower hereby agrees to pay such third Persons’ fees and any such amounts unpaid by Borrower may constitute Indebtedness;
(g) as a matter of right and without notice to Borrower or anyone claiming under Borrower, and without regard to the then value of the Collateral or the interest of Borrower therein, to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral, and Borrower hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Bank in case of entry as provided herein and shall continue as such and exercise all such powers until the date of the sale of the Collateral unless such receivership is sooner terminated; and
(h) lawfully exercise all rights and remedies of a secured creditor under the Code, including selling the interests of Borrower in the Collateral at public or private sale conducted in accordance with applicable Law. Bank shall give Borrower not less than ten (10) days’ written notice of any such public sale or of the date after which private sale may be held. B▇▇▇▇▇▇▇ agrees that ten (10) days’ written notice shall be reasonable notice. At any such sale any or all of the Collateral may be sold as an entirety or in separate parts, as Bank may determine in its sole discretion. Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. Bank is authorized at any such sale, if Bank deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or resale of any of the terms Collateral. Borrower specifically agrees that any such sale, whether public or private, of any Collateral pursuant to the commitment of any investor to purchase such Collateral that was obtained by (or with the approval of) Borrower will be commercially reasonable, and provisions if such sale is for the price provided for in such commitment, then such sale shall be held to be for value reasonably equivalent to the value of the Collateral so sold. Upon any such sale, Bank shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Borrower has or may have under any rule of law or statute now existing or hereafter adopted. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Bank until the selling price is paid by the purchaser, but Bank shall not incur any liability in case of such purchaser’s failure to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Nothing in this Agreement or the other Loan Documents (eachshall be construed as Borrower’s waiver of, an "Obligated Party");
(b) declare the Note or agreement to be immediately due and payable;
(c) use and apply waive, any monies deposited in the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or requirement imposed by applicable Law that any other monies deposited by Borrower with Lender, regardless sale of the purpose for which the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is due and owing to Lender or to operate the Property or for any other purposes described Collateral be commercially reasonable. Notwithstanding anything set forth herein or in any other this Article 10, the exercise of Bank’s rights under this Loan Document;
(d) institute an action, suit or proceeding at law or in equity for Documents shall be subject to those rights of Closing Date Investor under the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and
(e) set-off against the obligations ESS Subordination Agreement to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lenderwhich it is a party.
Appears in 1 contract
Sources: Loan and Security Agreement (GlassBridge Enterprises, Inc.)
Rights Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage Note and the other Loan Documents, have the right right, but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, Borrower or any other person Person providing collateral Collateral pursuant to to, or obligated to perform any of the terms and provisions of of, this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations under this Agreement and the other Loan Documents;
(c) declare the Note to be immediately due and payable; provided, however, that upon the occurrence of any event specified in Section 6.1.12 or Section 6.1.13 hereof, the Note shall automatically become immediately due and payable, both as to principal and all interest and other amounts due thereunder, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, notwithstanding anything contained herein or in the Note to the contrary;
(cd) use and apply any monies deposited in the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other all monies deposited by Borrower with Lender, regardless of the purpose for which the same were deposited, to cure any default Default or Event of Default Default, or to apply such monies on account of any indebtedness under this Agreement Obligations in such manner or any order of the other Loan Documents which is due priority as Lender may determine in its sole and owing to Lender or to operate the Property absolute discretion or for any other purposes described herein or in any other Loan Document;
(de) take such actions as Lender shall deem necessary to realize upon any or all of the Collateral, including, without limitation, the institution of foreclosure actions and/or Uniform Commercial Code sales;
(f) institute an actionone or more actions, suit suits or proceeding proceedings at law or in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder Document or for the enforcement of any other appropriate legal or equitable remedy; andand/or
(eg) set-off setoff against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lender.
Appears in 1 contract
Rights Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage and the other Loan Documents, have the right right, but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(ai) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, Borrower or any other person Person providing collateral Collateral pursuant to to, or obligated to perform any of the terms and provisions of of, this Agreement or the other Loan Documents (each, an "Obligated Party");
(bii) declare the Note to be immediately due and payable;
(ciii) use and apply any monies deposited in or credited to, as the case may be, the Tax and Insurance Escrow Subaccount, the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless of the purpose for which the same were deposited, to cure any default Default or Event of Default Default, or to apply such monies on account of any indebtedness under this Agreement or any of the other Loan Documents which is due and owing to Lender Lender, or to operate the Property Premises, or for any other purposes described herein or in any other Loan Document;
(div) institute an action, suit or proceeding at law or in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; andand/or
(ev) set-off setoff against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lender.
Appears in 1 contract
Rights Upon Event of Default. Upon the occurrence of an Event of Default and in every such event (other than an event with respect to the Loan Parties described in subparagraph (g) or (h) of Section 9.01) and at any time thereafter during the continuance of such event, Bank may take, without limitation, any Event or all of Defaultthe following actions, Lender shallat the same or different times: (i) declare the principal of and any accrued interest on the Credit Facility, in addition to and all other Obligations, to be, whereupon the same shall become, due and payable immediately in full, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Loan Parties, (ii) to the extent that Borrower has any right to receive advances under the Credit Facility, terminate the Borrower’s right to obtain or receive advances, (iii) exercise all rights and remedies conferred upon Lender contained in the Security Documents, (iv) exercise all rights and remedies contained in any other Loan Document, and (v) exercise any other remedies available at law or in equity equity; and that, if an Event of Default specified in either subparagraph (g) or (h) of Section 9.01 shall occur, the principal of the Credit Facility then outstanding, together with accrued interest thereon, and all fees, and all other Obligations shall automatically immediately become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the terms Loan Parties. Notwithstanding the foregoing, if any note of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, Borrower to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, or any other person providing collateral pursuant to or obligated to perform Bank constituting any of the terms Obligations, including without limitation, any of the Notes, shall be a demand instrument, however, the recitation of the right of Bank to declare any and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note all Obligations to be immediately due and payable;
(c) use and apply any monies deposited , whether such recitation is contained in such note or in this Agreement, as well as the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless recitation of the purpose for which the same were deposited, above events permitting Bank to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is declare all Obligations due and owing payable, shall not constitute an election by Bank to Lender or waive its right to operate the Property or for demand payment under a demand feature at any other purposes described herein or time and in any other Loan Document;
(d) institute an actionevent, suit or proceeding at law or as Bank in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and
(e) set-off against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lenderits discretion may deem appropriate.
Appears in 1 contract
Rights Upon Event of Default. Upon the occurrence of an Event of Default and in every such event (other than an event with respect to the Loan Parties described in subparagraph (f) or (g) of Section 9.01 hereof) and at any time thereafter during the continuance of such event, Bank may take, without limitation, any Event or all of Defaultthe following actions, Lender shallat the same or different times: (i) declare the principal of and any accrued interest on the Loan, in addition to and all other Obligations, to be, whereupon the same shall become, due and payable immediately in full, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Loan Parties, (ii) to the extent that Borrower has any right to receive Advances under the Loan, terminate the Borrower’s right to obtain or receive Advances, (iii) exercise all rights and remedies conferred upon Lender contained in the Security Agreements, (iv) exercise all rights and remedies contained in any other Loan Document, and (v) exercise any other remedies available at law or in equity equity; and that, if an Event of Default specified in either subparagraph (f) or (g) of Section 9.01 hereof shall occur, the principal of the Loan then outstanding, together with accrued interest thereon, and all fees, and all other Obligations shall automatically immediately become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the terms Loan Parties. Notwithstanding the foregoing, if any note of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, Borrower to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, or any other person providing collateral pursuant to or obligated to perform Bank constituting any of the terms Obligations, including without limitation, any of the Note[s], shall be a demand instrument, however, the recitation of the right of Bank to declare any and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note all Obligations to be immediately due and payable;
(c) use and apply any monies deposited , whether such recitation is contained in such note or in this Agreement, as well as the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless recitation of the purpose for which the same were deposited, above events permitting Bank to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is declare all Obligations due and owing payable, shall not constitute an election by Bank to Lender or waive its right to operate the Property or for demand payment under a demand feature at any other purposes described herein or time and in any other Loan Document;
(d) institute an actionevent, suit or proceeding at law or as Bank in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and
(e) set-off against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lenderits discretion may deem appropriate.
Appears in 1 contract
Rights Upon Event of Default. Upon Subject and subordinate in all respects to the occurrence rights, powers and during prerogatives of the continuance of relevant Agency under its Acknowledgment Agreement, if any Event of DefaultDefault shall occur and be continuing, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by Bank may without notice terminate the terms of Commitment and declare the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, Indebtedness or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower; provided, however, that upon the occurrence of an Event of Default under Section 9.4 or Section 9.5, the Commitment shall automatically terminate, and the Indebtedness shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding the foregoing, Borrower reserves the right to contest the existence of an Event of Default. If any Event of Default shall occur and be continuing, Bank may exercise all rights and remedies available to it in law or in equity, under the Loan Documents, or otherwise, including without limitation:
(a) in its discretion, to demand, ▇▇▇ for, collect or receive and receipt for (in its own name, in the name of the Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b) direct, and to take any and all other steps necessary to cause, any Servicer of any of the Collateral to pay over directly to the Bank for the account of the Borrower (instead of to the Borrower or any other Person) all sums from time to time due to the Borrower and to take any and all other actions that the Borrower or the Bank has the right to take under the Borrower’s contract with such Servicer; and
(c) use direct the Borrower to pay over to the Bank all sums from time to time due the Borrower under or in respect of the Collateral, including any and apply any monies deposited in all fees and other compensation under the Clearing AccountApproved Servicing Agreements for servicing the Serviced Loans and all amounts paid to or collectable by the Borrower to pay Pledged Servicing Receivables, whether paid to the Cash Collateral Account Borrower or withheld or recovered by the Tax Borrower from collections and Insurance Escrow Account realizations on such Mortgage Loans or any other monies deposited source, and to take any and all other actions that, subject to any restrictions imposed by Borrower with Lender, regardless the relevant Approved Servicing Agreement for the benefit of the purpose for which party to it on whose behalf the Mortgaged Loans are being serviced (to the extent that such restrictions are valid and enforceable under the applicable Code and other Laws), the Borrower or the Bank has the right to take under that Approved Servicing Agreement, and if the Bank does so request, then the Borrower shall diligently and continuously thereafter comply with such request. All amounts so received and collected by Bank pursuant to this Section 10.1 shall be applied in the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which order and manner as is due and owing to Lender or to operate the Property or for any other purposes described herein or specified in any other Loan Document;Section 10.2.1.
(d) institute an action, suit foreclose upon or proceeding at law or otherwise enforce its security interest in equity for and Lien on the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan DocumentCollateral, or in aid on such portions or elements of the execution of any power granted hereunder or for Collateral as the enforcement of any other appropriate legal or equitable remedy; andBank shall elect to proceed against from time to time.
(e) set-off against at the obligations Bank’s option and in its sole discretion, but subject to Lender applicable Laws, to notify any or all Makers obligated under any or all items of Borrower Collateral, that the Collateral has been assigned to the Bank and that all payments thereon are to be made directly to the Bank or such other Person as may be designated by the Bank; settle, compromise, or release, in whole or in part, any amounts owing on the Collateral or any other Obligated Partyportion of the Collateral, on terms acceptable to the Bank; enforce payment and performance and prosecute any sum owed action or proceeding with respect to any and all Collateral; and where any such Collateral is in default, foreclose on and enforce Liens or security interests in, such Collateral by Lender any available judicial procedure or without judicial process and sell property acquired as a result of any Affiliate such foreclosure.
(f) act, or contract with one or more third Persons to act, as Servicer of Lender each item of Collateral requiring servicing and perform all obligations required in connection with any capacity Approved Servicing Agreements to which the Borrower is a party, and the Borrower hereby agrees to pay such third Persons’ fees to the extent (if any) that the Bank is unable, despite reasonable efforts made by the Bank in light of the necessity that there be no material break in the continuity of servicing, to contract for such servicing and performance of such obligations for fees equal to or less than the fees under such Approved Servicing Agreements.
(g) as a matter of right and without notice to Borrower or anyone claiming under Borrower, and without regard to the then value of the Collateral or the interest of Borrower therein, to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral, and Borrower hereby irrevocably consents to such other Obligated Partyappointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Bank in case of entry as provided herein and shall continue as such and exercise all such powers until the date of the sale of the Collateral unless such receivership is sooner terminated.
(h) exercise all rights and remedies of a secured creditor under the Code, including selling the interests of the Borrower in the Collateral at public or private sale. Bank shall give the Borrower not less than 10 days’ written notice of any property such public sale or of the date after which private sale may be held. The Borrower agrees that 10 days’ written notice shall be reasonable notice. At any such sale any or all of the Collateral may be sold as an entirety or in separate parts, as the Bank may determine in its commercially reasonable discretion. The Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. The Bank is authorized at any such sale, if the Bank deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or resale of any of them the Collateral. The Borrower specifically agrees that any such sale, whether public or private, of any Collateral pursuant to the commitment of any investor to purchase such Collateral that was obtained by (or with the approval of) the Borrower will be commercially reasonable, and if such sale is for the price provided for in such commitment, then such sale shall be held to be for value reasonably equivalent to the possession value of Lender the Collateral so sold. Upon any such sale, the Bank shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which the Borrower has or may have under any rule of law or statute now existing or hereafter adopted. In case of any sale of all or any Affiliate part of Lenderthe Collateral on credit or for future delivery, the Collateral so sold may be retained by the Bank until the selling price is paid by the purchaser, but the Bank shall not incur any liability in case of such purchaser’s failure to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Nothing in this Agreement shall be construed as the Borrower’s waiver of, or agreement to waive, any requirement imposed by applicable law that any sale of the Collateral be commercially reasonable.
Appears in 1 contract
Rights Upon Event of Default. Upon the occurrence and during the continuance of If any Event of DefaultDefault shall occur and be continuing, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under Bank may without notice terminate this Agreement and declare the other Loan Documents) of Borrower, and the Guarantors, Obligations or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower; provided, however, that upon the occurrence of an Event of Default under Section 8(f), this Agreement shall automatically terminate and the Loan and the Obligations shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower. If any Event of Default shall occur and be continuing, subject to the requirements of any applicable Acknowledgment Agreement, Bank may exercise all rights and remedies available to it in law or in equity, under the Loan Documents (other than the Warehouse Agreement), or otherwise, including without limitation:
(a) in its discretion, to demand, ▇▇▇ for, collect or receive and receipt for (in its own name, in the name of Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b) direct, and to take any and all other steps necessary to cause, any Servicer of any of the Collateral to pay over directly to Bank for the account of Borrower (instead of to Borrower or any other Person) all sums from time to time due to Borrower and to take any and all other actions that Borrower or Bank has the right to take under Borrower’s contract with such Servicer;
(c) use direct Borrower to pay over to Bank all sums from time to time due Borrower under or in respect of the Collateral, including any and apply any monies deposited in all fees and other compensation under the Clearing AccountServicing Agreements for servicing the Serviced Loans and all amounts paid to or collectable by Borrower to pay Pledged Servicing Receivables, the Cash Collateral Account whether paid to Borrower or the Tax withheld or recovered by Borrower from collections and Insurance Escrow Account realizations on such Mortgage Loans or any other monies deposited source, and to take any and all other actions that, subject to any restrictions imposed by Borrower with Lender, regardless the relevant Servicing Agreement for the benefit of the purpose for which party to it on whose behalf the Mortgaged Loans are being serviced (to the extent that such restrictions are valid and enforceable under the UCC and all applicable laws, rules and regulations), Borrower or Bank has the right to take under that Servicing Agreement, and if Bank does so request, then Borrower shall diligently and continuously thereafter comply with such request. All amounts so received and collected by Bank pursuant to this Section 9(c) shall be applied in the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which order and manner as is due and owing to Lender or to operate the Property or for any other purposes described herein or specified in any other Loan DocumentSection 3(h);
(d) institute an actionforeclose upon or otherwise enforce its security interest in and Lien on the Collateral, suit or on such portions or elements of the Collateral as Bank shall elect to proceed against from time to time;
(e) at Bank’s option and in its sole discretion, to notify any or all Makers obligated under any or all items of Collateral, that the Collateral has been assigned to Bank and that all payments thereon are to be made directly to Bank or such other Person as may be designated by Bank; to settle, compromise, or release, in whole or in part, any amounts owing on the Collateral or any portion of the Collateral, on terms acceptable to Bank; enforce payment and performance and prosecute any action or proceeding at law with respect to any and all Collateral; and where any such Collateral is in default, foreclose on and enforce Liens or security interests in, such Collateral by any available judicial procedure or without judicial process and sell property acquired as a result of any such foreclosure;
(f) act, or contract with one or more third Persons to act, as Servicer of each item of Collateral requiring servicing and perform all obligations required in equity connection with any Servicing Agreements to which Borrower is a party, and Borrower hereby agrees to pay such third Persons’ fees to the extent (if any) that Bank is unable, despite reasonable efforts made by Bank in light of the necessity that there be no material break in the continuity of servicing, to contract for the specific such servicing and performance of any covenantsuch obligations for fees equal to or less than the fees under such Servicing Agreements;
(g) as a matter of right and without notice to Borrower or anyone claiming under Borrower, condition or agreement contained herein or in and without regard to the Mortgage, Note or any other Loan Document, or in aid then value of the execution Collateral or the interest of Borrower therein, to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral, and Borrower hereby irrevocably consents to such appointment and waives notice of any power granted hereunder application therefor. Any such receiver or for receivers shall have all the enforcement usual powers and duties of any other appropriate legal receivers in like or equitable remedysimilar cases and all the powers and duties of Bank in case of entry as provided herein and shall continue as such and exercise all such powers until the date of the sale of the Collateral unless such receivership is sooner terminated; and
(eh) set-off against exercise all rights and remedies of a secured creditor under the obligations to Lender UCC, including selling the interests of Borrower in the Collateral at public or private sale. Bank shall give Borrower not less than 10 days’ notice of any such public sale or of the date after which private sale may be held. Borrower agrees that 10 days’ notice shall be reasonable notice. At any such sale any or all of the Collateral may be sold as an entirety or in separate parts, as Bank may determine in its sole discretion. Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. Bank is authorized at any such sale, if Bank deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or resale of any of the Collateral. Borrower specifically agrees that any such sale, whether public or private, of any Collateral pursuant to the commitment of any investor to purchase such Collateral that was obtained by (or with the approval of) Borrower will be commercially reasonable, and if such sale is for the price provided for in such commitment, then such sale shall be held to be for value reasonably equivalent to the value of the Collateral so sold. Upon any such sale, Bank shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Borrower has or may have under any rule of law or statute now existing or hereafter adopted. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Bank until the selling price is paid by the purchaser, but Bank shall not incur any liability in case of such purchaser’s failure to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Nothing in this Agreement shall be construed as Borrower’s waiver of, or agreement to waive, any requirement imposed by applicable law that any sale of the Collateral be commercially reasonable. Borrower waives any right to require Bank to proceed against any third party, exhaust any Collateral or other security for the Obligations, or to have any third party joined with Borrower in any suit arising out of the Obligations or any of the Loan Documents, or pursue any other remedy available to Bank. Borrower further waives any and all notice of acceptance of this Agreement. Borrower further waives any defense arising by reason of any disability or other defense of any third party or by reason of the cessation from any cause whatsoever of the liability of any third party. All rights available to Bank under the Loan Documents shall be cumulative of and in addition to all other rights granted to Bank at Law or in equity, whether or not the Loan or the Obligations be due and payable or performance required and whether or not Bank shall have instituted any suit for collection, foreclosure, or other action under or in connection with the Loan Documents. Notwithstanding the foregoing, Bank’s rights as set forth in this Section 9 shall be subject in all respects to the limitations and restrictions set forth in any relevant Acknowledgment Agreement so long as such Acknowledgment Agreement has not been terminated. In connection with the exercise of its rights hereunder, Borrower hereby grants Bank, only to the extent permissible under any applicable federal, state or local law or regulation and permitted under any applicable contract with a third-party service provider, the nonexclusive right to access (in common with Borrower and any other secured party that has a valid and enforceable security interest therein and that agrees that its security interest is similarly nonexclusive) Borrower’s operating systems for the sole purpose of managing and administering the Pledged Servicing Rights, including obtaining any of the related data and information described above, or that otherwise relates to the Pledged Servicing Rights, together with the media on which the same are stored to the extent stored with material information or data that relates to property other than the Pledged Servicing Rights (tapes, discs, cards, drives, flash memory or any other Obligated Partykind of physical or virtual data or information storage media or systems, and Borrower’s rights to access the same, whether exclusive or nonexclusive, to the extent that such access rights may lawfully be transferred or used by Borrower’s permittees), and any sum owed computer programs that are owned by Lender Borrower (or any Affiliate of Lender in any capacity licensed to Borrower under licenses that may lawfully be transferred or used by Borrower’s permittees) and that are used or useful to access, organize, input, read, print or otherwise output and otherwise handle or use such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lenderinformation and data.
Appears in 1 contract
Sources: Loan and Security Agreement (Stonegate Mortgage Corp)
Rights Upon Event of Default. Upon Subject and subordinate in all respects to the occurrence rights, powers and during prerogatives of the continuance of Agency under the Acknowledgment Agreement and Consent Agreement, if any Event of DefaultDefault shall occur and be continuing, Lender shall, in addition to all other remedies conferred Bank may upon Lender at law or in equity or by notice terminate the terms of Commitment and declare the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, Indebtedness or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable without notice, demand, present, notice of dishonor notice of acceleration, notice of intent to accelerate, protest or other formalities of any kind, all of which are hereby expressly waived by Borrower; provided, however, that upon the occurrence of an Event of Default under Section 9.4 or Section 9.5, the Commitment shall automatically terminate, and the Indebtedness shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower. Notwithstanding the foregoing, Borrower reserves the right to contest the existence of an Event of Default. If any Event of Default shall occur and be continuing, Bank may, subject to Section 10.12, exercise all rights and remedies available to it in law or in equity, under the Loan Documents, or otherwise, including without limitation:
(a) in its discretion, to demand, ▇▇▇ for, collect or receive and receipt for (in its own name, in the name of Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b) direct, and to take any and all other steps necessary to cause, any Servicer of any of the Collateral to pay over directly to Bank for the account of Borrower (instead of to Borrower or any other Person) all sums from time to time due to Borrower and to take any and all other actions that Borrower or Bank has the right to take under Borrower’s contract with such Servicer; and
(c) use direct Borrower to pay over to Bank all sums from time to time due Borrower under or in respect of the Collateral, including any and apply any monies deposited in all fees and other compensation under the Clearing AccountApproved Servicing Agreement for servicing the Serviced Loans related to the Pledged Servicing Rights and all amounts paid to or collectable by Borrower to pay Pledged Servicing Receivables, whether paid to Borrower or withheld or recovered by Borrower from collections and realizations on the Cash Collateral Account or Mortgage Loans related to the Tax and Insurance Escrow Account Pledged Servicing Rights or any other monies deposited source, and to take any and all other actions that, subject to any restrictions imposed by Borrower with Lender, regardless the Approved Servicing Agreement for the benefit of the purpose for which Agency (to the extent that such restrictions are valid and enforceable under the applicable Code and other Laws), Borrower or Bank has the right to take under the Approved Servicing Agreement, and if Bank does so request, then Borrower shall diligently and continuously thereafter comply with such request. All amounts so received and collected by Bank pursuant to this Section 10.1 shall be applied in the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which order and manner as is due and owing to Lender or to operate the Property or for any other purposes described herein or specified in any other Loan Document;Section 10.2.1.
(d) institute an action, suit foreclose upon or proceeding at law or otherwise enforce its security interest in equity for and Lien on the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan DocumentCollateral, or in aid on such portions or elements of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; andCollateral as Bank shall elect to proceed against from time to time.
(e) set-off against at Bank’s option and in its sole discretion, to notify any or all Makers obligated under any or all items of Collateral, that the obligations Collateral has been assigned to Lender of Borrower Bank and that all payments thereon are to be made directly to Bank or such other Person as may be designated by Bank; settle, compromise, or release, in whole or in part, any amounts owing on the Collateral or any other Obligated Partyportion of the Collateral, on terms acceptable to Bank; enforce payment and performance and prosecute any sum owed action or proceeding with respect to any and all Collateral; and where any such Collateral is in default, foreclose on and enforce Liens or security interests in, such Collateral by Lender any available judicial procedure or without judicial process and sell property acquired as a result of any Affiliate such foreclosure.
(f) [Reserved].
(g) As a matter of Lender in any capacity right and without notice to Borrower or anyone claiming under Borrower, and without regard to the then value of the Collateral or the interest of Borrower therein, to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral, and Borrower hereby irrevocably consents to such other Obligated Partyappointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Bank in case of entry as provided herein and shall continue as such and exercise all such powers until the date of the sale of the Collateral unless such receivership is sooner terminated.
(h) exercise all rights and remedies of a secured creditor under the Code, including selling the interests of Borrower in the Collateral at public or private sale. Bank shall give Borrower not less than ten (10) days’ written notice of any property such public sale or of the date after which private sale may be held. Borrower agrees that ten (10) days’ written notice shall be reasonable notice. At any such sale any or all of the Collateral may be sold as an entirety or in separate parts, as Bank may determine in its sole discretion. Bank may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. Bank is authorized at any such sale, if Bank deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or resale of any of them the Collateral. Borrower specifically agrees that any such sale, whether public or private, of any Collateral pursuant to the commitment of any investor to purchase such Collateral that was obtained by (or with the approval of) Borrower will be commercially reasonable, and if such sale is for the price provided for in such commitment, then such sale shall be held to be for value reasonably equivalent to the possession value of Lender the Collateral so sold. Upon any such sale, Bank shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Borrower has or may have under any rule of law or statute now existing or hereafter adopted. In case of any sale of all or any Affiliate part of Lenderthe Collateral on credit or for future delivery, the Collateral so sold may be retained by Bank until the selling price is paid by the purchaser, but Bank shall not incur any liability in case of such purchaser’s failure to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Nothing in this Agreement shall be construed as Borrower’s waiver of, or agreement to waive, any requirement imposed by applicable law that any sale of the Collateral be commercially reasonable.
Appears in 1 contract
Rights Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender shall, in addition to all other remedies conferred upon Lender at law or in equity or by the terms of the Note, the Mortgage and the other Loan Documents, have the right but not the obligation, to pursue any one or more of the following remedies, concurrently or successively, it being the intent hereof that all such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is necessary or appropriate to effect observance and performance of the covenants, agreements and obligations (under this Agreement and the other Loan Documents) of Borrower, the Guarantors, or any other person providing collateral pursuant to or obligated to perform any of the terms and provisions of this Agreement or the other Loan Documents (each, an "Obligated Party");
(b) declare the Note to be immediately due and payable;
(c) use and apply any monies deposited in the Clearing Account, the Cash Collateral Account or the Tax and Insurance Escrow Account or any other monies deposited by Borrower with Lender, regardless of the purpose for which the same were deposited, to cure any default or Event of Default or to apply on account of any indebtedness under this Agreement or any of the other Loan Documents which is due and owing to Lender or to operate the Property Properties or for any other purposes described herein or in any other Loan Document;
(d) institute an action, suit or proceeding at law or in equity for the specific performance of any covenant, condition or agreement contained herein or in the Mortgage, Note or any other Loan Document, or in aid of the execution of any power granted hereunder or for the enforcement of any other appropriate legal or equitable remedy; and
(e) set-off against the obligations to Lender of Borrower or any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in any capacity to Borrower or such other Obligated Party, or any property of any of them in the possession of Lender or any Affiliate of Lender.
Appears in 1 contract
Sources: Loan Agreement (Golf Ventures Inc)