Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor. (b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above. (c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default. (d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 4 contracts
Samples: Master Lease Agreement (Synta Pharmaceuticals Corp), Master Lease Agreement (Synta Pharmaceuticals Corp), Master Lease Agreement (Synta Pharmaceuticals Corp)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches 8.1 The occurrence of any of its insurance obligations under Section 9; the following events or conditions (iii) Lessee breaches any herein "Events of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTORDefault") becomes insolvent shall, at the option of Pledgee and without notice to or ceases to do business demand on Pledgor, constitute an Event of Default hereunder:
8.1.1 any Default, under and as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and defined in the event Loan Agreement, shall have occurred and be continuing;
8.1.2 breach, violation or non-performance of an involuntary petitionany warranty, the petition is not dismissedcovenant or undertaking on Pledgor's part hereunder; or
8.1.3 breach, within fortyviolation or non-five (45) days performance of the filing date; (ix) Lessee default any warranty, covenant or undertaking on Pledgor's part under any other material obligation for agreement with Pledgee (A) borrowed moneyincluding, (B) without limitation, the deferred purchase price Guaranty).
8.2 Upon the occurrence of propertyany Event of Default, Pledgee may, at its option, without notice to or demand on Pledgor, declare all Obligations immediately due and payable, and Pledgee shall have all the default rights and remedies of a secured party under Chapter 5 of Division 9 of the California Uniform Commercial Code and other applicable law as well as the following rights and remedies, all of which may be exercised with or without further notice to Pledgor, at Pledgee's sole option and as Pledgee in its sole discretion may deem advisable:
8.2.1 to settle, compromise or release, on terms acceptable to Pledgee, in whole or in part, any amounts owing on the Collateral, and to extend the time of payment, in Pledgee's name or in the name of Pledgor, in respect thereof;
8.2.2 to apply to the payment of the Obligations, or (C) payments due under set-off or collect the lease agreementCollateral, notwithstanding any forfeiture of interest or loss of other rights of Pledgor against any obligor on the Collateral resulting from such action; (x) there is any dissolution, termination and
8.2.3 to sell or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringotherwise dispose of the Collateral, or any other stock offeringpart thereof, preferred to commoneither at public or private sale, on any broker's board or securities exchange, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk lots or in parcelsbulk, for cash, on credit or otherwise, with or without noticerepresentations or warranties, and without having upon such terms as shall be acceptable to Pledgee.
8.3 The net cash proceeds resulting from the Equipment present collection, liquidation, sale, or other disposition of the Collateral shall be applied first, to the expenses (including all attorneys' fees) of holding, storing, preparing for sale, selling, collecting, liquidating and the like, including any brokerage commissions and stamp or transfer taxes, and then to the satisfaction of all Obligations secured hereby, application as to any particular obligation or indebtedness or against principal or interest to be in Pledgee's absolute discretion.
8.4 If by reason of any prohibition contained in the Securities Act of 1933, as now or hereafter in effect, or in applicable California or other state securities laws, as now or hereafter in effect, or in any rules or regulations pertaining to any of the foregoing laws, Pledgee believes it is compelled to resort to one or more private sales of shares of stock constituting Collateral to a single purchaser or a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, Pledgor acknowledges and agrees that private sales of such Collateral may be held notwithstanding that such sales may be at the place of prices and on other terms less favorable to Pledgor than if such Collateral were sold at public sale. Lessor Pledgor further agrees that Pledgee has no obligation to delay the sale of any such Collateral for the period of time necessary to permit registration of the Collateral, even if the issuer thereof would, or should, agree to register such Collateral for public sale under applicable securities laws. Pledgor specifically agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a "commercially reasonable" manner.
8.5 Pledgor further acknowledges and recognizes that Pledgee may also, but shall not be required to, lease, otherwise dispose unable to effect a public sale of or keep idle all or a part of the EquipmentCollateral and may be compelled to resort to one or more private sales of shares of stock constituting Collateral to a single purchaser or a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Lessor Pledgor acknowledges that any such private sales may use Lessee's premises for a reasonable period be at prices and on terms less favorable to Pledgee than those of time for any or all of the purposes stated above without liability for rentpublic sales, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, and agrees that such private sales shall be applied deemed to have been made in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the a commercially reasonable manner and place that Pledgee has no obligation to delay the sale of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with Collateral to permit the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default issuer thereof to register it for public sale under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementSecurities Act.
Appears in 4 contracts
Samples: Pledge Agreement (3-D Geophysical Inc), Pledge Agreement (3-D Geophysical Inc), Pledge Agreement (3-D Geophysical Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: If any of the following events or conditions (each an "Event of Default") shall occur and be continuing:
(i) Lessee breaches its obligation the Borrower shall fail to pay rent the Principal Sum when and as the same shall become due and payable, whether at its stated maturity, by acceleration or otherwise;
(ii) the Borrower shall fail to pay any Interest within 30 days of when and as the same shall become due and payable, whether at its stated maturity, by acceleration or otherwise;
(iii) upon or after the occurrence of a default with respect to any other outstanding indebtedness of the Borrower for borrowed money the holder thereof declares all obligations with respect to such indebtedness to be due and payable prior to the stated maturity or regularly scheduled dates of payment with respect to such indebtedness;
(iv) if the Stockholders' Meeting is required, the Borrower fails to hold the Stockholders' Meeting in accordance with Section 5 of the Note and Warrant Purchase Agreement;
(v) the Borrower fails to grant and deliver the Warrants in accordance with the terms of the Note and Warrant Purchase Agreement;
(vi) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of the Borrower, or of a substantial part of the property or assets of the Borrower, under Title 11 of the United States Code, as now constituted or hereafter amended, or any successor to or replacement of such statute, or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation Federal or warranty made by Lessee in connection with this Agreement shall be false state bankruptcy, insolvency, receivership or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed moneysimilar law, (B) the deferred purchase price appointment of propertya receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of the properties or assets of the Borrower or (C) payments due the winding-up, liquidation or dissolution of the Borrower; and such proceeding or petition shall continue undismissed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(vii) the Borrower (A) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the lease agreement; (x) there is any dissolutionUnited States Code, termination as now constituted or existencehereafter amended, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not successor to include an initial public offeringor replacement of such statute, or any other stock offeringFederal or state bankruptcy, preferred insolvency, receivership or similar law, (B) consents to, or fails to commoncontest in a timely and appropriate manner, the commencement against of any proceeding or the filing of any petition described in which clause (v) above, (C) applies for or consents to the primary purpose is appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of the properties or assets of the Borrower, (D) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) makes a general assignment for the benefit of creditors, (F) becomes unable, admits in writing its inability or fails generally to raise cash equity; pay its debts as they become due or (xiG) there is a material adverse change takes any action for the purpose of effecting any of the foregoing;
(x) in the Lessee's financial condition. The default declaration case of an Event of Default specified in clause (a)(i), (ii), (iii), (iv) or (v) above, the Lender may, at any time during the continuance of such Event of Default, by written notice to the Borrower, declare the entire outstanding Principal Sum, together with all accrued and unpaid Interest, to be due and payable and (y) in the case of an Event of Default specified in clauses (a)(vi) or (vii) above, the entire outstanding Principal Sum, together with all accrued and unpaid Interest, shall apply to automatically forthwith become due and payable without presentment, protest or notice of any kind, all Schedules unless specifically excepted of which are hereby expressly waived by Lessorthe Borrower.
(b) After a defaultSubject to the other terms of this Note, at if an Event of Default occurs and is continuing, the request of Lessor, Lessee shall comply with Lender may pursue any available remedy to collect the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession payment of the EquipmentPrincipal Sum or Interest or to enforce the performance of any provision of this Note. Lessee shall immediately If an Event of Default occurs and is continuing, the Lender may proceed to protect and enforce its rights by any action at law, suit in equity or other appropriate proceeding. In the case of a default in the payment of the Principal Sum or Interest, the Borrower will pay to Lessor without the Lender such further demand amount as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in sufficient to cover the following order of priorities: (i) to pay all of Lessor's costs, charges costs and expenses incurred in takingof collection, removingincluding, holdingwithout limitation, repairing reasonable attorneys' fees, expenses and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovedisbursements.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives Borrower shall promptly furnish the Lender notice of sale any Event of Default or other disposition (and the event which, with notice, lapse of time and place thereof)or both, and the manner and place would become an Event of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies Default under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultSection 5.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Convertible Note (Navisite Inc), Convertible Note (Navisite Inc), Convertible Note (Navisite Inc)
Default and Remedies. A. Each of the following shall be deemed an event of default by Sellers (a) Lessor may in writing declare this Agreement in default if: each, an "Event of Default"):
(i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) If any representation or warranty made by Lessee of Sellers set forth in connection with this Agreement shall be any of the Sale-Leaseback Documents is false in any material respect or misleading if Sellers render any statement or account which is false in any material respect;
(ii) If any Seller fails to keep or perform any of the terms or provisions of this Agreement;
(iii) If any Seller or Guarantor is or becomes insolvent within the meaning of the Code, files or notifies Buyer that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action which is not dissolved within 90 days after filing, or is not generally paying its debts as the same become due;
(iv) If there is an "Event of Default" under the Lease or any Permitted Sublease; or
(v) Lessee If there is an "Event of Default" or a breach or default, after the passage of all applicable notice and cure or grace periods, under any other Sale-Leaseback Document or any guarantor of the Other Agreements.
B. In the event of any Event of Default, Buyer shall be entitled to exercise, at its option, concurrently, successively or other obligor in any combination, all remedies available under the Lease or at law or in equity, including without limitation any one or more of the following:
(i) To terminate this Agreement by giving written notice to Sellers in which case neither party shall have any further obligation or liability, except such liabilities as Sellers may have for such breach or default;
(ii) To proceed with the Lessee's obligations hereunder Closing and direct Title Company to apply such portion of the Purchase Price as Buyer may deem reasonably necessary to cure any such breach or default;
("GUARANTOR"iii) becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural personTo bring an action for damages against Sellers, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and which, in the event of Buyer proceeds to close, may include an involuntary petition, amount equal to the petition is not dismissed, within forty-five (45) days difference between the value of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) Properties as conveyed to Buyer and the deferred purchase price value such Properties would have had if all representations and warranties of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to Sellers were true and Sellers have complied with all Schedules unless specifically excepted by Lessor.of their obligations;
(biv) After a defaultTo bring an action to require Sellers specifically to perform their obligations hereunder; and/or
(v) To recover from Sellers all costs and expenses, at the request of Lessorincluding reasonable attorneys' fees, Lessee shall comply paid or incurred by Buyer in connection with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under transaction contemplated by this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges costs and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by LesseeBuyer as a result of such breach or default. The liabilities, to pay Lessor all sums due from Lessee obligations and duties of Sellers under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; Agreement are joint and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) several between and (ii) aboveamong the Sellers.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Sale Leaseback Agreement (Uno Restaurant Corp), Sale Leaseback Agreement (Uno Restaurant Corp), Sale Leaseback Agreement (Uno Restaurant Corp)
Default and Remedies. (a) Lessor may in writing declare this Agreement in In the event of Licensee’s default if: hereunder, including but not limited to (i) Lessee breaches its obligation the failure to pay rent fees, additional fees or any other sum payments set forth herein when due due, and fails Licensee’s failure to cure the breach same within ten (10) daysdays after receipt of notice of such failure from Licensor; (ii) Lessee breaches any abandonment of its insurance obligations under Section 9either the Equipment or that portion of the Site upon which the Equipment was installed for a period exceeding sixty (60) days after early termination or expiration of this License; (iii) Lessee breaches Licensee’s failure within sixty (60) days to have any of the following or removed: the filing of any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Licensee; or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Licensee or its debts; or (iv) the making by Licensee of an assignment or any other obligations arrangement for the general benefit of creditors under any state statute, Licensor shall be entitled at Licensor’s option to terminate this Agreement and fails to cure that breach within Licensee shall have thirty (30) days after written from the date of the termination notice from Lessor; (iv) to remove all of its Equipment, improvements to personal property located at the Site or Licensor may remove all Licensee’s Equipment, improvements or personal property located at the Site at Licensee’s cost and expense. In the event that Licensor should, as a result of Licensee’s default, incur any representation costs or warranty made by Lessee expenses on behalf of Licensee or in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's Licensee’s obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural personhereunder, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event sums shall, upon rendering of an involuntary petitioninvoice, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) Licensee to reimburse to Lessee any sums previously paid by Lessee Licensor as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovean additional fee hereunder.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Water Tank License Agreement, Water Tank License Agreement, Tower License Agreement
Default and Remedies. (a) Lessor may in writing declare The occurrence of any of the following events shall be events of default hereunder: Seller shall fail to pay any indebtedness to WFBC when due or repurchase any Account when required hereunder; Seller shall breach any term, provision, promise, warranty, representation or covenant under this Agreement in default if: (i) Lessee breaches its Agreement, or under any other agreements, contracts, between Seller and WFBC or obligation to WFBC; the appointment of any receiver or trustee of all or a substantial portion of the assets of Seller; Seller shall become insolvent or unable to pay rent debts as they mature, shall make a general assignment for the benefit of creditors or shall voluntarily file a petition under the United States Bankruptcy Code or any other sum when due and fails to cure the breach within ten (10) dayssimilar law; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee involuntary petition in connection with this Agreement bankruptcy shall be filed against Seller and is not dismissed within 60 days or an order for relief is entered against Seller under the United States Bankruptcy Code; any levies, attachment, executions, tax assessments or similar process shall be issued against the Collateral; any financial statements, profit and loss statements, or schedules, other statements or documents furnished by Seller to WFBC are false or misleading incorrect in any material respect; (v) Lessee or any guarantor or other obligor documents submitted by Seller to WFBC for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event purchase of an involuntary petitionAccount are mistaken, the petition is not dismissedfraudulent, within forty-five (45) days of the filing date; (ix) Lessee default under incorrect and/or erroneous in any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyrespect, or (C) payments due under if the lease agreement; (x) there is Seller fails to submit any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted document required by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due WFBC under this Agreement for the purchase of that Account or if any guarantor withdraws a guaranty of this agreement. Upon the occurrence of an event of default, WFBC may declare immediately due and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without noticepayable, and to charge back, all indebtedness of Customer to WFBCI, including without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: limitation (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) outstanding purchased Accounts and (ii) above.
(c) The foregoing remedies are cumulativeall other fees, costs and expenses as required hereunder and exercise any or all thereof may be exercised instead of or in addition rights available to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (a secured creditor with respect to the Seller and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum Collateral (as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(ddefined below) Any default under the terms Uniform Commercial Code (the “UCC”). After the occurrence of this or an event of default, interest shall accrue on any other agreement between Lessor and Lessee may be declared by Lessor a unpaid balance due to WFBC at the default under this and any such other agreementrate of 18%.
Appears in 3 contracts
Samples: Account Transfer Agreement (Corporate Resource Services, Inc.), Account Transfer Agreement (Hyperion Energy, Inc.), Account Transfer Agreement (Hyperion Energy, Inc.)
Default and Remedies. 16.1 You will be in default if any one or more of the following events occur:
(a) Lessor may You fail to deliver any of the Stock in writing declare accordance with this Agreement;
(b) You do not pay all payments due to us on time and in accordance with this Agreement;
(c) You or any Guarantor becomes insolvent or bankrupt or enters into receivership, liquidation, external administration or becomes subject to any scheme of arrangement or composition of creditors;
(d) You cease to carry on farming the Land or a substantial portion of it, on which the Stock are being grazed unless you have first obtained our written consent to move the Stock;
(e) You attempt to sell, dispose, sublease, encumber, create any security interest or otherwise deal with any of the Stock except in accordance with this Agreement;
(f) You breach any term of this Agreement and have not remedied the same;
(g) Any representation, warranty or statement made by you was untrue when made or becomes untrue in default if: the context of the facts and circumstances that exist as at any later date;
(h) You change your name without first notifying us of your new name at least 21 days before the change takes effect;
(i) Lessee breaches its obligation You breach any of the covenants contained in clause 8;
(j) You part with possession of any of the Stock except pursuant to pay rent this Agreement;
(k) You dispose of a substantial portion of the Land without giving to us at least 21 days prior written notice and first obtaining our written consent to move any Stock;
(l) Any execution or other similar proceedings are levied or issued against the Land.
(m) If any indebtedness or obligations of you or any Guarantor to us or any other sum person is not paid, met or satisfied when due or becomes due and fails payable prior to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation specified maturity or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee us or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee creditor of you or any Guarantor is a natural person, becomes entitled to declare any death or incompetency indebtedness of Lessee you or such Guarantor; (viii) a petition is filed by Guarantor due or against Lessee you or any Guarantor makes default under any bankruptcy charge or insolvency laws security in favour of us or any other person;
16.2 If you are in default of this Agreement then we are entitled as of right without prior notice to enter the Land or any other property where we believe the Stock may be located and repossess or xxxxxxxxx the Stock. We may, at our discretion, deal with the Stock, any part of the Stock, or any products derived from the Stock that we repossess or take in any manner that we see fit including without limitation by re-leasing, disposing of, or otherwise dealing with all or part of them; AND at Our discretion and without prejudice to the foregoing rights we may elect to give you notice at any time: EITHER
(a) to remedy the default within 14 days in cases where we deem the default is capable of remedy and failing your remedying such default to our satisfaction to immediately deliver up possession of the Stock to us
(b) to immediately deliver up possession of the Stock to us AND We are entitled in any event as of right to terminate this Agreement with effect from any date specified by us as a result of default under clause 15.1.
16.3 In the event of termination pursuant to clause 16.2 above, and without detracting from any rights we have to recover any outstanding debts or to seek remedies or damages against you, then:
(a) We shall no longer be required to make any payments to you other than an involuntary petitionamount equal to the surplus (if any) of funds received by us upon the sale of any Stock that we have taken possession of after deducting all amounts we are entitled to under clause 12.6, interest at the petition is not dismissedDefault Rate, within forty-five (45) days of any costs we have incurred in repossessing the filing date; (ix) Lessee default under Stock and any other material obligation for (A) borrowed moneyamount we are entitled to or may become entitled to under this Agreement. In the event that the sale proceeds are insufficient to cover these amounts, (B) then the deferred purchase price deficiency shall be a debt payable forthwith by you to us together with interest at the Default Rate and compounded on the first day of property, or (C) payments due under the lease agreement; (x) there each calendar month until payment is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessormade.
(b) After a default, at All Stock then shall forthwith be removed from the request property of Lessor, Lessee shall comply you and delivered to the property or properties nominated by us. All costs associated with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession removal of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, Stock shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveyou.
(c) The foregoing remedies We shall in any event be entitled to remove the Stock from the Land or such other place as it may be situated and carry out a sale of the Stock either by auction or private agreement. You agree to co-operate fully with the identification, rounding up and removal of the Stock. All costs of or arising from such removal are cumulative, and to be paid by you.
16.4 Without diminution of any or all thereof may be exercised instead the remedies provided by virtue of clause 16.2 or in addition to each other or any remedies at law16.3, in equity, the event that you have sold or under statute. Lessee waives notice of sale disposed or other disposition (and otherwise parted with the time and place thereof), and the manner and place possession of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred of the Stock then we at our option are entitled to elect to make demand upon you a sum equal to all the aggregate of the sums set forth in connection clause 12 insofar as they are applicable together with interest at the Default Rate from the Settlement Date calculated daily and compounded on the first day of each calendar month together with the enforcement, assertion, defense or preservation costs and expenses and you shall be bound upon receipt of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultnotice to make payment immediately to us.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Master Livestock Agreement, Master Livestock Agreement, Master Livestock Agreement
Default and Remedies. A. Each of the following shall be deemed an event of default by Debtor, after notice, to the extent required hereunder, and after the expiration of any applicable grace or cure period without the cure thereof (aeach, an "Event of Default"):
(1) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) If any representation or warranty of Debtor set forth in any of the Loan Documents is false in any material respect when made by Lessee in connection with this Agreement shall be or becomes false or misleading in any material respect; , or if Debtor renders any materially false statement or account;
(v2) Lessee If any principal, interest or other monetary sum due under the Note or any guarantor other Loan Document is not paid within five days from the date when due and Creditor shall have given notice of such failure to Debtor and such failure shall not have been cured by Debtor within five days from the delivery of such notice;
(3) If Debtor fails to observe or perform any of the other obligor for covenants (except as otherwise provided below), conditions, or obligations of this Agreement other than the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent covenants in Sections 5.E., 5.F., and 5.H of this Agreement or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor there is a natural person, any death breach or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for Loan Document beyond any applicable notice or cure period; provided, however, if any such event does not involve the payment of any monetary sum, is not the result of a willful or intentional act or omission of Debtor, does not place any rights or property of Creditor in immediate jeopardy, and is within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by Creditor in its reasonable discretion, then such event shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Creditor shall have given Debtor notice thereof and a period of 30 days shall have elapsed, during which period Debtor may correct or cure such event, upon failure of which an Event of Default shall be deemed to have occurred hereunder (Aexcept as otherwise provided in the following sentence) borrowed moneywithout further notice or demand of any kind being required. If such nonmonetary event cannot reasonably be cured within such 30-day period, as determined by Creditor in its reasonable discretion, and Debtor is diligently pursuing a cure of such event, then an Event of Default shall not be deemed to have occurred hereunder upon the expiration of such 30-day period and Debtor shall have a reasonable period to cure such event beyond such 30-day period, which shall not exceed 90 days after receiving notice of the event from Creditor. If Debtor shall fail to correct or cure such event within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required;
(B4) If Debtor fails to observe or perform any of the deferred purchase price of propertycovenants in Sections 5.E., 5.F., or 5.H of this Agreement; or
(C5) payments due If Debtor becomes insolvent within the meaning of the Code, files or notifies Creditor that it intends to file a petition under the lease agreement; Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (x) there collectively, an "Action"), becomes the subject of either an involuntary Action or petition under the Code without such involuntary Action or petition being dismissed within 30 days of filing or, if Debtor is any dissolutiondiligently proceeding to dismiss such petition, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantorsuch longer period of time as if required, but in no event shall such longer period of time be greater than 90 days, or is not generally paying its debts as the same become due.
B. Upon and during the continuance of an Event of Default, subject to include the limitations, notices and cure periods set forth in subsection A, or an initial public offeringAcceleration Event, Creditor shall have no obligation to fund any Advance to Debtor and Creditor may declare all obligations of Debtor under the Note, this Agreement and any other Loan Document to be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any kind except as expressly provided herein. Thereafter, Creditor may exercise, at its option, concurrently, successively or in any combination, all remedies available at law or in equity, including without limitation any one or more of the remedies available under the Note or any other stock offeringLoan Document. Neither the acceptance of this Agreement nor its enforcement shall prejudice or in any manner affect Creditor's right to realize upon or enforce any other security now or hereafter held by Creditor, preferred it being agreed that Creditor shall be entitled to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under enforce this Agreement and all Schedulesany other security now or hereafter held by Creditor in such order and manner as it may in its absolute discretion determine. Lessor may terminate this Agreement as No remedy herein conferred upon or reserved to Creditor is intended to be exclusive of any other remedy given hereunder or all now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Equipment. A termination shall occur only upon written notice by Lessor Loan Documents to Lessee and only as Creditor, or to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof which Creditor may be exercised instead of otherwise entitled, may be exercised, concurrently or in addition independently, from time to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as often as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultdeemed expedient by Creditor.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Revolving Line of Credit Loan Agreement (Lightfirst Inc), Revolving Line of Credit Loan Agreement (Lightfirst Inc), Revolving Line of Credit Loan Agreement (Lightfirst Inc)
Default and Remedies. (a) The occurrences of any of the following events shall constitute an Event of Default hereunder, and shall permit Lessor may to exercise the remedies provided in writing declare this Agreement in default if: Section 17(b) below, including the termination of Lessee’s right to possession of the Equipment and Collateral:
(i) Lessee breaches its obligation to pay rent The non-payment when due, of any installment of Rent or any other sum when due and fails required hereunder to cure the breach within ten (10) days; be paid by Lessee;
(ii) The failure by Lessee breaches to perform any other material term, obligation, covenant or condition under any of its insurance obligations under Section 9; the Lease Documents that is not cured within twenty (20) days after such failure;
(iii) The non-payment by Lessee breaches when due or default in the performance of any other indebtedness or obligation to Lessor or any parent, subsidiary or affiliated company of its other obligations and fails Lessor (subject to any applicable cure that breach within thirty (30) days after written notice from Lessor; periods).
(iv) The subjection of a substantial part of Lessee’s property or any part of the Equipment or Collateral to any Lien other than a Permitted Lien;
(v) Lessee shall be in default under the terms of any contract with any Person requiring the payment of money by Lessee in an amount greater than or equal to $75,000;
(vi) In the event that (A) Lessee shall (1) authorize or agree to the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, receivership or other similar Law now or hereafter in effect that authorizes the reorganization or liquidation of such party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, (2) make a general assignment for the benefit of its creditors, (3) fail generally or admit in writing its inability to pay its debts as they become due, (4) take any corporate action to authorize any of the foregoing or (5) have an involuntary or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period exceeding 60 days; or (B) an order for relief pursuant to such applicable debtor/creditor law shall have been entered against Lessee;
(vii) If any representation or warranty made by Lessee herein, or made by Lessee in any statement or certificate furnished by the Lessee in connection with the execution of this Agreement shall be false Lease or misleading the delivery of any items of Equipment hereunder or furnished by the Lessee pursuant hereto, proves untrue in any material respect; respect as of the date of the issuance or making thereof;
(viii) The issuance of any writ or order of attachment or execution or other legal process against any Equipment or any Collateral which is not discharged, stayed, or satisfied within fifteen (15) days;
(ix) The occurrence of any event or condition described in subsections (iv), (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; ), (vi) any Equipment is illegally used; ), or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under hereof with respect to any other material obligation party liable, in whole or in part, for (A) borrowed money, (B) the deferred purchase price performance of property, or (C) payments due any of Lessee’s obligations under the lease agreementthis Lease; and
(x) there is any dissolutionOne or more final judgments, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringorders, or any other stock offeringdecrees for the payment of money in an amount, preferred to common, in which the primary purpose is to raise cash equity; individually or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration aggregate, of at least One Hundred Fifty Thousand Dollars ($150,000) (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall apply be rendered against Lessee and the same are not, within fifteen (15) days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to all Schedules unless specifically excepted by Lessorthe expiration of any such stay.
(b) After Upon the continuance and during the continuance of any of the above Events of Default, (i) all obligations hereunder shall bear interest at a defaultrate per month which is one and one-half percent (1.5%) (or the highest rate permitted by law, at whichever is lower) (“Default Rate”), and (ii) Lessor may demand, by written notice to Lessee (provided that upon the request occurrence of an Event of Default described in Section 17(a)(vi), no such written notice shall be required), that Lessee pay to Lessor an amount equal to the outstanding principal balance due hereunder plus the Default Rate plus all other sums then payable by Lessee hereunder.
(c) Upon the occurrence and during the continuance of an Event of Default to the extent requested by Lessor, and subject to the requirements of any Senior Facility, Lessee shall comply with deliver the provisions Equipment to Lessor, in good repair, condition and working order, ordinary wear and tear resulting from permitted use thereof under the terms of Section 9(a) this Lease alone excepted, to a location within or outside the continental United States of America specified by Lessor. Such Equipment shall be carefully crated and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be shipped, freight, drayage and take possession of the Equipment. re-assembly costs prepaid and properly insured, by Lessee, and Lessee shall immediately pay bear all risk of loss until the Equipment are delivered to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedulesor its designee. Lessor may terminate this Agreement as shall be entitled to any or all of sell the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public salesale within or without the United States of America, in bulk or in parcels, parcels with or without notice, and without having the Equipment present at the place of sale, with the privilege of becoming the purchaser thereof. Lessor may also, but shall not be required to, entitled to lease, otherwise dispose of or keep idle all or any part of the Equipment. Lessor may use shall also be entitled to draw on any letter of credit or take any deposit, in either case theretofore provided by Lessee to secure its obligations hereunder.
(d) Upon the occurrence and during the continuance of an Event of Default, Lessor shall be entitled to (i) require the Lessee to assemble the Collateral and make it available at the principal place of business or other places of business of the Lessee to allow the Lessor to take possession or dispose of the Collateral, (ii) subrogate to all of the Lessee's premises for a ’s interests, rights and remedies in respect to the Collateral, including the right to stop delivery, and (upon notice from the Lessee that the account debtor has returned, rejected, revoked acceptance of or failed to return the goods or that the goods have been reconsigned or diverted) the right to take possession of and to sell or dispose of the goods, (iii) make any payments or do any acts it considers necessary or reasonable period to protect its security interest in the Collateral, and/or (iv) take and maintain possession of time for and sell or otherwise dispose of any or all of the purposes stated above Collateral at public or private sale, and if notice of such sale or of other action by the Lessor is required by Applicable Law, ten (10) day notice after the date of any public sale or the date after which Lessor enters into any private sale shall constitute sufficient notice of Lessor’s disposition of the Collateral, and further provided, (A) the Lessor has no obligation to refurbish or otherwise prepare the Collateral for sale, (B) the Lessor may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral, (C) the Lessor may specifically disclaim any warranties of title or the like, and (D) in the event the Lessor sells any Collateral upon credit, the Lessee will be credited only with the principal portion of payments actually made by the purchaser, received by Lessor and applied to the purchase of the Collateral.
(e) Lessee grants Lessor the right to enter and occupy any of its premises, without liability for rentcharge, costs, damages to exercise any of Lessor’s rights or otherwiseremedies. The proceeds of sale, lease or other dispositiondisposition of the Equipment and Collateral, if any, or the proceeds of any letter of credit or deposit, if any, shall be applied in the following order of priorities: (i1) to pay all of Lessor's ’s costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipmentthe Equipment and Collateral (including, without limitation, reasonable attorneys’ fees, costs and disbursements); then then, (ii2) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee the amount required under this AgreementSection 17(b); then then, (iii3) any remaining amounts to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to the Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred any deficiency for amounts described in connection with the enforcement, assertion, defense or preservation of Lessor's rights clauses (1) and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted(2) above forthwith. Waiver The exercise of any default of the foregoing remedies by Lessor shall not be constitute a waiver of any other or subsequent default.
(d) Any default under the terms termination of this or any other agreement between Lease unless Lessor and so notifies Lessee may be declared by Lessor a default under this and any such other agreementin writing.
Appears in 3 contracts
Samples: Master Lease Agreement, Master Lease Agreement (Tabula Rasa HealthCare, Inc.), Master Lease Agreement (Tabula Rasa HealthCare, Inc.)
Default and Remedies. North Country shall be deemed in default under this Security Agreement upon the occurrence and during the continuance of an Event of Default, as that term is defined in the Credit Agreement. In addition to all other rights and remedies granted to Purchaser by this Security Agreement, the Credit Agreement, the other Credit Documents, the UCC and other applicable Governmental Rules, Purchaser may, upon the occurrence and during the continuance of any Event of Default (and, if applicable, the expiration of the sixty (60) day period as provided in the Credit Agreement), exercise any one or more of the following rights and remedies: (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent collect, receive, appropriate or any other sum when due and fails to cure realize upon the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation Collateral or warranty made by Lessee in connection with this Agreement shall be false otherwise foreclose or misleading enforce Purchaser's security interests in any material respector all Collateral in any manner permitted by applicable Governmental Rules or in this Security Agreement; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to notify any or all Account Debtors to make payments on Receivables directly to Purchaser; (c) direct any depository bank or intermediary to liquidate the account(s) maintained by it, pay all amounts payable in connection therewith to Purchaser and/or deliver any proceeds thereof to Purchaser; (d) sell or otherwise dispose of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any or all Collateral at one or more public or private sales, whether or not such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment Collateral is present at the place of sale. Lessor , for cash or credit or future delivery, on such terms and in such manner as Purchaser may also, but shall not determine; (e) require North Country to assemble the Collateral and make it available to Purchaser at a place to be required to, lease, otherwise dispose of designated by Purchaser; (f) enter onto any property where any Collateral is located and take possession thereof with or keep idle all or part without judicial process; and (g) prior to the disposition of the Equipment. Lessor may use Lessee's premises for a reasonable period Collateral, store, process, repair or recondition any Collateral consisting of time for goods, perform any or all obligations and enforce any rights of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing North Country under any Related Contracts or otherwise disposing of Equipment; then (ii) prepare and preserve Collateral for disposition in any commercially reasonable manner and to the extent not previously paid Purchaser reasonably deems appropriate. In furtherance of Purchaser's rights hereunder, North Country hereby grants to Purchaser an irrevocable, non-exclusive license (exercisable without royalty or other payment by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iiiPurchaser) to reimburse use, license or sublicense any patent, trademark, tradename, copyright or other intellectual property in which North Country now or hereafter has any right, title or interest, together with the right of access to Lessee all media in which any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The of the foregoing remedies are cumulative, and any or all thereof may be exercised instead of recorded or in addition stored (but only to each other the extent North Country is not prohibited from granting such irrevocable, non-exclusive license under applicable law or any remedies at law, in equity, or under statutematerial agreement to which it is a party). Lessee waives In any case where notice of any sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcementCollateral is required, assertion, defense North Country hereby agrees that seven (7) days notice of such sale or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultdisposition is reasonable.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Credit Agreement (Mile High Brewing Co), Security Agreement (Mile High Brewing Co), Investment Agreement (Aviator Ales Inc)
Default and Remedies. 4.1 If one or more of the following events ("Defaults") occurs and is not timely cured, then, the Unit of Local Government may declare Business in default under this Agreement and seek any of the enumerated remedies described in this Section.
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and Business fails to cure observe or perform any covenant or agreement contained in this Agreement, including the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) Exhibits hereto, for 10 days after written notice from Lessor; to cure thereof has been given to Business by the Unit of Local Government;
(ivb) any representation Any representation, warranty, certificate or warranty statement made by Lessee Business in connection with this Agreement, including the Exhibits hereto, or in any certificate, report, financial statement or other document delivered pursuant to this Agreement shall be false or misleading prove to have been incorrect when made in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.;
(c) The foregoing remedies are cumulativeBusiness shall commence a voluntary case or other proceeding seeking liquidation, and reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or all thereof may be exercised instead other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in addition to each an involuntary case or other or any remedies at law, in equityproceeding commenced against it, or under statute. Lessee waives notice shall make a general assignment for the benefit of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreementcreditors, or if prohibited by lawshall fail generally to pay its debts as they become due, such lesser sum as may be permitted. Waiver or shall take any corporate action to authorize any of any default shall not be a waiver of any other or subsequent default.the foregoing;
(d) Any default An involuntary case or other proceeding shall be commenced against Business seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceedings shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against Business under the federal bankruptcy laws as now or hereafter in effect;
(e) Business ceases the conduct of active trade or business in the Unit of Local Government's community for any reason, including, but not limited to, fire or other casualty; and does not reopen prior to the end date of the grant agreement.
4.2 If a Default occurs and is not timely cured, then the Unit of Local Government shall seek reimbursement from the Business for all funds (including DCEO funds) expended by the Unit of Local Government on or related to the Project, including, but not limited to working capital, equipment, architectural engineering, construction, administrative, real estate and incidental costs related thereto.
4.3 Upon notice of a Default and if said Default is not timely cured, the Unit of Local Government shall notify the Business that reimbursement shall be made to the Unit of Local Government within 30 days after said notice. If the Business fails to reimburse the Unit of Local Government within 30 days after the date of the notice, the Unit of Local Government shall have the right to collect interest on the unpaid balance beginning on the 31st day after notice at a rate equal to 12% per annum.
4.4 If the Unit of Local Government is successful in any proceeding to enforce the terms of this or any other agreement between Lessor Agreement, then the Unit of Local Government shall have the right to obtain from the Business, as an additional remedy, attorney fees, costs and Lessee may be declared by Lessor a default under this and any such other agreementexpenses, related to the proceeding.
Appears in 3 contracts
Samples: Participation Agreement, Participation Agreement, Participation Agreement
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTORGuarantor") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also10(a). Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplussurplus shall be retained by Lessor. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 3 contracts
Samples: Master Lease Agreement (Northwest Pipe Co), Master Lease Agreement (Telik Inc), Master Lease Agreement (Tripath Imaging Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; business days after receipt of written notice from Secured Party of such breach;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect when made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any guarantor of the Collateral, which in the reasonable commercial judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other obligor for the Lessee's obligations hereunder agreement between Debtor and Secured Party;
("GUARANTOR"viii) Debtor dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) A receiver is appointed for all or of any Equipment is illegally used; material part of the property of Debtor, or Debtor makes any assignment for the benefit of creditors;
(viix) if Lessee Debtor files a petition under any bankruptcy, insolvency or similar law, or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws Debtor and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five sixty (4560) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or days;
(xi) there There is a material adverse change in the Lessee's Debtor’s financial condition. The default declaration shall apply condition which results or could reasonably be expected to all Schedules unless specifically excepted by Lessorresult in Debtor being unable to perform its obligations under this Agreement for the remainder of the term of this Agreement; or
(xii) At any time during the term of this Agreement a Change of Control (as defined in the Supply Agreement) involving a Competitor of Buyer(as defined in the Supply Agreement) occurs without Secured Party’s prior written consent, which consent will not be unreasonably withheld.
(b) After a defaultIf Debtor is in default hereunder, the Secured Party, at its option, may upon written notice to Debtor declare any or all of the request Indebtedness to be immediately due and payable, without demand or notice to Debtor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of Lessortwelve percent (12%) per annum or the maximum rate not prohibited by applicable law.
(c) During a default hereunder, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to: (i) notify any account debtor of Debtor under any account or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, peaceably during normal business hours enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party and upon reasonable prior written notice to Debtor, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as Collateral unusable at the Debtor’s premises (subject to the units rights of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, third parties) and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at [...***...].
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation reasonable and documented attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred and documented in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (reasonable and the time necessary costs incurred and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred documented by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT UNDER THIS AGREEMENT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 3 contracts
Samples: Supply Agreement (Tpi Composites, Inc), Supply Agreement (Tpi Composites, Inc), Supply Agreement (Tpi Composites, Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days; or
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 3 contracts
Samples: Master Security Agreement (Achillion Pharmaceuticals Inc), Master Security Agreement (Biolex, Inc.), Master Security Agreement (Achillion Pharmaceuticals Inc)
Default and Remedies. (aA) Lessor may in writing declare this Agreement The Debtors shall be in default if: hereunder upon the occurrence of any one of the following events (each an "Event of Default"):
(1) any Debtor shall fail to pay any amount payable in respect of any Liability when due (including the expiration of any applicable grace periods).
(2) any representation, warranty or information herein, heretofore or hereafter furnished to the Secured Party by any Debtor in connection with any of the Liabilities, including any warranty made by such Debtor through the submission of any schedule, statement, certificate or other document pursuant to or in connection with this Agreement, shall be false in any material respect.
(3) any Debtor shall fail to timely perform any of its obligations under this Agreement.
(4) there shall exist any Potential Default or Event of Default as defined under the Credit Agreement.
(B) Upon the occurrence of any Event of Default which shall be continuing, (i) Lessee breaches unless the Secured Party elects otherwise, the entire unpaid amount of such of the Liabilities as is not then otherwise due and payable shall become immediately due and payable without notice to or demand on any Debtor, (ii) the Secured Party or its agents may enter any Debtor's premises to exercise the Secured Party's right to take possession of any Collateral, and (iii) the Secured Party may at its option exercise from time to time any and all rights and remedies available to it under the Uniform Commercial Code or otherwise, including the right to assemble, receipt for, adjust, modify, repair, refurnish or refurbish (but without any obligation to pay rent do so) or foreclose or otherwise realize upon any of the Collateral and to dispose of any of the Collateral at one or more public or private sales or other sum when due and fails to cure proceedings. Each Debtor agrees that the breach within Secured Party or its nominee may become the purchaser at any such sale or sales. Each Debtor further agrees that ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days reasonable prior notice of the filing date; (ix) Lessee default under date of any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition of all or any part of the Collateral, or of the date on or after which any private sale or other disposition of the same may be made.
(and C) The exercise by the time and place thereof)Secured Party of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, and the manner Secured Party may proceed against the Debtors or any of them and place the Collateral and any other collateral granted by any Debtor to the Secured Party under any other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or bar on any future occasion. All property of any advertisingkind held at any time by the Secured Party as Collateral shall stand as one general continuing collateral security for all the Liabilities and may be retained by the Secured Party as security until all the Liabilities are fully satisfied. Lessee The Debtors shall pay Lessorto the Secured Party on demand any and all expenses (including reasonably attorneys' fees and legal expenses) which may have been incurred by the Secured Party with interest at the Prevailing Interest Rate (i) in the prosecution or defense of any action growing out of or connected with the subject matter of this Agreement, the Liabilities, the Collateral or any of the Secured Party's actual attorney's fees incurred rights therein or thereto; or (ii) in connection with the enforcementcustody, assertionpreservation, defense use, operation, preparation for sale or preservation sale of Lessor's rights and remedies under this Agreementany of the Collateral, the incurring of all of which are hereby authorized to the extent the Secured Party deems the same advisable. The Debtors' liability to the Secured Party for any such payment with interest shall be included in the Liabilities. The Proceeds of any Collateral received by the Secured Party at any time before or after default, whether from a sale or other disposition of Collateral or otherwise, or if prohibited by lawthe Collateral itself, such lesser sum as may be permittedapplied to the payment in full or in part of such of the Liabilities and in such order and manner as the Secured Party may elect. Waiver Each Debtor to the extent of its rights in the Collateral waives and releases any default shall not be a waiver right to require the Secured Party to collect any of the Liabilities from any other or subsequent default.
(d) Any default under of the terms of this Collateral or any other agreement between Lessor and Lessee may be declared collateral then held by Lessor a default the Secured Party under this and any such other agreementtheory of marshaling of assets or otherwise.
Appears in 3 contracts
Samples: Credit Agreement (Eplus Inc), Credit Agreement (Eplus Inc), Credit Agreement (Eplus Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; ;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) There is a material adverse change in the Debtor's financial condition as determined solely by Secured Party;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the filing date; Indebtedness or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party;
(ixxv) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; or
(xxvi) there is At any dissolution, termination time during the term of this Agreement Debtor experiences a change of control such that any person or existence, merger, consolidation entity acquires either more than 50% or change in controlling ownership the voting stock of Debtor or Lessee all or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to commonsubstantially all of Debtor's assets, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lesseeeither case, without Secured Party's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorprior written consent.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness (including the outstanding principal balance plus any accrued default interest and late charges through the date the default is cured) to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party's rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement (Amphastar Pharmaceuticals, Inc.), Master Security Agreement (Amphastar Pharmaceuticals, Inc.)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other non-payment obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in connection with this Agreement any of the Debt Documents or in any of the periodic reports delivered to Secured Party pursuant to Section 5(b) shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral.
(xiii) Debtor shall merge with or consolidate into any other entity or sell all or substantially all of its assets or in any manner terminate its existence;
(xiv) Debtor is a privately held corporation, more than 50% of Debtor’s voting capital stock, or effective control of Debtor’s voting capital stock, issued and outstanding from time to time, is not retained by the holders of such stock on the date the Agreement is executed;
(xv) Debtor is a publicly held corporation, there shall be a change in the ownership of Debtor’s stock such that Debtor is no longer subject to the reporting requirements of the filing date; Securities Exchange Act of 1934 or no longer has a class of equity securities registered under Section 12 of the Securities Act of 1933;
(ixxvi) Lessee default Debtor defaults under any other material obligation for financing arrangement between Debtor and a third party; and
(Axvii) borrowed moneySecured Party shall have determined in its sole, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) reasonable and good faith judgment that there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is has been a material adverse change in the Lessee's Debtor’s financial condition. The default declaration shall apply , taken as a whole, which would impair the ability of Debtor to all Schedules unless specifically excepted by Lessor.perform its obligations hereunder or under any of the other financing agreements to which it is a party or of Secured Party to enforce the Indebtedness or realize upon the Collateral;
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or prior notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessorfourteen percent (14%) per annum or the maximum rate not prohibited by applicable law.
(c) Secured Party shall have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, Lessee and under any other applicable law. Without limiting the foregoing, if Debtor is in default, Secured Party shall comply have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party, which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rentrent or costs. Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action. Upon the occurrence and during the continuation of an Event of Default, costsDebtor hereby appoints Secured Party as Debtor’s attorney-in-fact, damages with full authority in Debtor’s place and stead and in Debtor’s name or otherwise. The proceeds , from time to time in Secured Party’s sole and arbitrary discretion, to take any action and to execute any instrument which Secured Party may deem necessary or advisable to accomplish the purpose of sale, this Agreement.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementTO THE EXTENT PERMITTED BY LAW, DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement (Aldagen Inc), Master Security Agreement (Aldagen Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent 3.1. The Bank or any other sum when due Noteholder shall have the right, power and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases authority to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee all things deemed necessary or any Guarantor is a natural personadvisable to enforce the provisions of this Guaranty Agreement and protect their interest in the Collateral Documents and, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petitiondefault in the timely or complete performance or payment of any Guaranteed Obligation, the petition is not dismissedBank or the Noteholder may institute or appear in such appropriate judicial proceedings as the Bank or such Noteholder shall deem most effectual to protect and enforce any of their rights hereunder, within forty-five (45) days whether for the specific enforcement of any covenant or agreement in this Guaranty Agreement or in aid of the filing date; (ix) Lessee default under exercise of any power granted herein or in any Collateral Document, or to enforce any other material obligation proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of any Guaranteed Obligation when due, the Bank or the Noteholder may institute a judicial proceeding for (A) borrowed moneythe collection of the sums so due and unpaid, (B) and may prosecute such proceeding to judgment or final decree, and may enforce the deferred purchase price same against the Guarantor and collect the moneys adjudged or decreed to be payable in the manner provided by law out of propertythe property of the Guarantor, wherever situated.
3.2. No remedy conferred upon or (C) payments due under reserved to the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee Bank or any GuarantorNoteholder herein is intended to be exclusive of any other available remedy or remedies, but not each and every such remedy shall be cumulative and shall be in addition to include an initial public offering, every other remedy given under this Guaranty Agreement or any other stock offering, preferred to common, now or hereafter existing at law or in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change .
3.3. Each and every default in the Lessee's financial conditionpayment or performance of any Guaranteed Obligation shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After In the event of such a default, at the request of LessorBank or any Noteholder shall have the right to proceed first and directly against the Guarantor under this Guaranty Agreement without proceeding against any other person, Lessee shall comply with without exhausting any other remedies which it may have and without resorting to any other security held by the provisions of Section 9(a) Bank or the Noteholder.
3.4. The Guarantor agrees to pay all costs, expenses and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment fees, including all reasonable attorneys’ fees, which may be and take possession incurred by the Bank or any Noteholder in enforcing or attempting to enforce this Guaranty Agreement or protecting the rights of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, Bank or the Stipulated Loss Value of Noteholder hereunder following any default on the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of Guarantor hereunder, whether the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, same shall be applied enforced by suit or otherwise and unconditionally waives, in connection with any suit, action or proceeding brought by the following order of priorities: Bank or any Noteholder under this Guaranty Agreement, any and every right the Guarantor may have to (i) to pay all of Lessor's costsinjunctive relief, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid a trial by Lesseejury, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee interpose any sums previously paid by Lessee as liquidated damages; counterclaim therein and then (iv) to Lesseehave the same consolidated with any other or separate suit, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveaction or proceeding.
(c) The foregoing remedies are cumulative3.5. No delay or omission to exercise any right or power accruing upon any default, and omission or failure of performance hereunder shall impair any such right or all thereof power or shall be construed to be a waiver thereof, but any such right or power may be exercised instead of or in addition from time to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as often as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultdeemed expedient.
(d) Any default under 3.6. This Guaranty Agreement is entered into by the terms Guarantor with the Bank for the benefit of the Bank and any Noteholder each of whom shall be entitled to enforce performance and observance of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementGuaranty Agreement.
Appears in 2 contracts
Samples: Guaranty Agreement (Assisted Living Concepts Inc), Guaranty Agreement (Assisted Living Concepts Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default if: and each of the other Debt Documents if any one of the following should occur:
(i) Lessee Debtor breaches its obligation to pay rent or any other sum within five (5) days after when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Parties, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4 and such breach is not cured within five (iii5) Lessee days after written notice from Secured Parties;
(iv) Debtor breaches any of its other non-payment obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Parties;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of- the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect as of the date when made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Parties subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Parties, and such breach or default is not cured by Debtor or waived by Secured Parties within the applicable cure period, if any;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) Debtor shall merge with or consolidate into any other entity or sell all or substantially all of its assets or in any manner terminate its existence without Secured Parties’ prior written consent which consent shall not be unreasonably withheld, delayed, or conditioned;
(xiv) Debtor is a privately held corporation, more than 35% of Debtor’s voting capital stock, or effective control of Debtor’s voting capital stock, issued and outstanding from time to time, is not retained by the holders of such stock on the date the Agreement is executed without Secured Parties’ prior written consent which consent shall not be unreasonable withheld, delayed, or conditioned;
(xv) Debtor is a publicly held corporation, there shall be a change in the ownership of Debtor’s stock such- that Debtor is no longer subject to the reporting requirements of the filing date; Securities Exchange Act of 1934 or no longer has a class of equity securities registered under Section 12 of the Securities Act of 1933;
(ixxvi) Lessee default Debtor defaults under any other material obligation for financing arrangement between Debtor and a third party resulting in the acceleration by such third party of any indebtedness owed by Debtor to such third party in an amount in excess of $50,000; or
(Axvii) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) Secured Parties shall have determined in their sole and good faith judgment that there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is has been a material adverse change in the Lessee's financial condition. The default declaration condition or business operations of Debtor from the date hereof, or a change or event shall apply have occurred which would impair the ability of Debtor to all Schedules unless specifically excepted by Lessorperform its obligations hereunder or under any of the other financing agreements to which it is a party or of Secured Parties to enforce the Indebtedness or realize upon the Collateral.
(b) If Debtor is in default, the Secured Parties, at their option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After a defaultdefault has occurred and is continuing, at each of Secured Parties shall have all of the request rights and remedies of Lessora Secured Party under the Uniform Commercial Code, Lessee and under any other applicable law. Without limiting the foregoing, Secured Patties shall comply have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Parties, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral -from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Parties, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Parties at a place to be designated by Secured Parties, which is reasonably convenient to both parties. Lessor Secured Parties may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rentrent or costs. Any notice that Secured Parties is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action. Upon the occurrence and during the continuation of an Event of Default, costsDebtor hereby appoints Secured Parties as Debtor’s attorney-in-fact, damages with full authority in Debtor’s place and stead and in Debtor’s name or otherwise. The proceeds , from time to time in Secured Parties’ sole and arbitrary discretion, to take any action and to execute any instrument which Secured Parties may deem necessary or advisable to accomplish the purpose of sale, this Agreement.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Parties, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Parties in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Parties’ rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Parties’ rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently, in accordance with the Intercreditor Agreement between the Lenders of even date with this Agreement. Neither the failure nor any delay on the part of the Secured Parties to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTIES SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTIES. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTIES UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTIES RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement, Master Security Agreement (Ambit Biosciences Corp)
Default and Remedies. If any of the following shall occur:
(a) Lessor may in writing declare this Agreement in Tenant shall fail, for any reason, to make any payment of Rent as and when the same is due to be paid hereunder and such default if: shall continue for five (i5) Lessee breaches its obligation days after such payment was due, and for a further three (3) business days following the notice of such default.
(b) Tenant shall fail, for any reason, to pay rent or perform any other sum when due material covenant, condition, agreement or other obligation on the part of Tenant to be observed or performed pursuant to this Lease (other than the payment of any Rent) and fails to cure the breach within ten such default shall continue for fifteen (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (3015) days after written notice from Lessor; thereof (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for unless such performance will, due to the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days nature of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed moneyobligation, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is require a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all in excess of the purposes stated above without liability for rentThirty (30) days, coststhen after such period of time, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveis reasonably necessary).
(c) The foregoing remedies are cumulative, and any of the policies of Landlord's insurance on the Premises or all any part or contents thereof may shall be exercised instead actually or threatened to be cancelled or adversely changed as a result of any use or occupancy of or contents in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.Premises;
(d) Any default under Tenant shall purport to make a Transfer affecting the terms of Premises, or the Premises shall be used by any person or for any purpose, other than in compliance with and as expressly authorized by this Lease;
(e) Tenant or any other agreement between Lessor person occupying any portion of the Premises shall make an assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or make any proposal, assignment, arrangement or compromise with its creditors or, if any steps are taken or action or proceedings commenced by any person for the dissolution, winding-up or other termination of Tenant's existence or liquidation of its assets;
(f) a trustee, receiver, receiver-manager, agent or other like person shall be appointed in respect of the assets or business of Tenant or any other occupant of the Premises;
(g) Tenant attempts to or does abandon the Premises or remove or dispose of any goods and Lessee chattels from the Premises so that there would not, in the event of such removal or disposition, be sufficient goods of Tenant on the Premises subject to distress to satisfy all arrears of Rent payable under this Lease and all Rent payable hereunder for a further period of at least twelve (12) months, or if the Premises shall be vacant or unoccupied for a period of five (5) consecutive days or more without the prior written consent of Landlord;
(h) Tenant makes any sale in bulk affecting any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation);
(i) this Lease or any goods or other property of Tenant shall at any time be seized or taken in execution or attachment which remains unsatisfied for a period of five (5) days or more; and
(j) termination or re-entry by Landlord is permitted under any provision of this Lease or at law; then, without prejudice to and in addition to any other rights and remedies to which Landlord is entitled pursuant hereto or at law, the then current and the next three (3) months' Rent shall be forthwith due and payable and Landlord shall have the following rights and remedies, all of which are cumulative and not alternative, to:
(a) terminate this Lease in respect of the whole or any part of the Premises by written notice to Tenant; if this Lease is terminated in respect of part of the Premises, this Lease shall be deemed to be amended by the appropriate amendments, and proportionate adjustments in respect of Rent and any other appropriate adjustments shall be made in such manner as shall be determined by Landlord;
(b) enter the Premises as agent of Tenant and as such agent to relet them for whatever term (which may be declared for a term extending beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefor and, as the agent of Tenant, to take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same at the expense and risk of Tenant or to sell or otherwise dispose of the same at public or private sale without further notice, and to make such alterations to the Premises in order to facilitate their reletting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the reletting of the Premises, less all expenses incurred by Lessor a default Landlord in making the Premises ready for reletting and in reletting the Premises, on account of the Rent due and to become due under this Lease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; no such entry or taking possession of or performing alterations to or reletting of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
(c) remedy or attempt to remedy any default of Tenant in performing any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant therefor or for any damages resulting thereby, and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord's covenants hereunder and without thereby being deemed to infringe upon any of Tenant's rights pursuant hereto, and, in such case, Tenant shall pay to Landlord forthwith upon demand all amounts paid by Landlord to third parties in respect of such default and all reasonable costs of Landlord in remedying or attempting to remedy any such other agreementdefault plus ten (10%) percent of the amount of such costs for Landlord's inspection and supervision, plus a further ten (10%) percent for Landlord's overhead and profit;
(d) obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time.
Appears in 2 contracts
Samples: Lease Agreement (SMTC Corp), Lease Agreement (SMTC Corp)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: The occurrence of any one or more of the following shall constitute an “Event of Default” hereunder:
(i) Lessee breaches its obligation to pay rent or any other sum when due and The Company fails to cure repay the breach principal or interest on this Note within ten five (105) days; business days following the due date thereof.
(ii) Lessee breaches any of its insurance obligations under Section 9; The Merger Effective Date has not occurred on or prior to July 31, 2017.
(iii) Lessee breaches any The Company makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a receiver of or for the major part of its other obligations properties.
(iv) A trustee or receiver is appointed for the Company or for a material part of its properties and fails to cure that breach the order of such appointment is not discharged, vacated or stayed within thirty ninety (3090) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; such appointment.
(v) Lessee Bankruptcy, reorganization, arrangement, insolvency or any guarantor liquidation proceedings, or other obligor proceedings for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor relief under any bankruptcy or insolvency laws similar Laws or Laws for the relief of debtors, are instituted by or against the Company and, if so instituted, are consented to by the Company, or, if contested, are not dismissed by the adverse parties or by an Order within ninety (90) days after such institution.
(vi) Any of the representations and warranties made by Napo set forth in the event of an involuntary petition, the petition is Purchase Agreement were not dismissed, within forty-five true when made.
(45vii) days Any of the filing date; representations and warranties made by Jaguar set forth in any Transaction Document to which it is a party were not true when made.
(viii) Napo defaults in the observance or performance of any covenant, condition, obligation or agreement contained in the Transaction Documents, and to the extent that such default is curable, such default continues for a period of fifteen (15) consecutive days.
(ix) Lessee Jaguar defaults in the observance or performance of any covenant, condition, obligation or agreement contained in the Merger Agreement or any Transaction Document to which it is a party, and to the extent that such default under any other material obligation is curable, such default continues for a period of fifteen (A15) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; consecutive days.
(x) there is any dissolution, termination Jaguar Common Stock ceases to trade on either Nasdaq or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or Bulletin Board.
(xi) there is The occurrence of a material adverse change default under the Nantucket Loan Documents (as defined in the Lessee's financial condition. Intercreditor Agreement) or the Subordinated Loan Documents (as defined in the Intercreditor Agreement) other than any default as to which the Forbearance (as defined in the Intercreditor Agreement) applies.
(xii) The default declaration shall apply to all Schedules unless specifically excepted by Lessortermination or expiration of the Forbearance Period (as defined in the Intercreditor Agreement).
(b) After a defaultIf any Event of Default occurs under Sections 2(a)(i), at 2(a)(ii), or 2(a)(vi) — (xii), the request of Lessor, Lessee shall comply with Required Purchasers may declare the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession entire outstanding principal amount of the EquipmentNotes and all accrued but unpaid interest thereon and all other payments payable on the Notes to be forthwith due and payable in cash immediately, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company, to the fullest extent permitted by applicable Law. Lessee If an Event of Default specified in Sections 2(a)(iii), 2(a)(iv) or 2(a)(v) occurs and is continuing, then the outstanding principal balance, accrued interest thereon and all other payments payable hereunder shall become and be immediately pay to Lessor due and payable in cash without further demand as liquidated damages for loss of a bargain and not as a penalty, any declaration or other act on the Stipulated Loss Value part of the Equipment (calculated as Holder or the Required Purchaser. The Required Purchasers by notice to the Company may rescind an acceleration and its consequences. No such rescission shall affect any subsequent default or impair any right thereto. Notwithstanding anything to the contrary set forth herein, other than in connection with a breach of the rent payment date Security Agreement or Section 4.1 of the Purchase Agreement, in no event will any right or remedy conferred to the Holder under this Section 2(b) be exercised prior to the declaration earlier of default)(i) July 1, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all 2017, (ii) the consummation of the Equipment. A termination shall occur only upon Merger, or (iii) the delivery of the written notice by Lessor the Collateral Agent (as defined in the Intercreditor Agreement) to Lessee and only as to the units of Equipment specified Kingdon set forth in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part Section 1.10 of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Intercreditor Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulativeNo right, and any power or all thereof may be exercised instead of remedy conferred hereby or in addition to each other now or any remedies hereafter available at law, in equity, by statute or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee otherwise shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver exclusive of any other right, power or subsequent defaultremedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise, but all rights, powers and remedies of the Holder shall be cumulative and not alternative.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement, Note Purchase Agreement (Jaguar Animal Health, Inc.)
Default and Remedies. Subsection (a) Lessor may is hereby amended by substituting the following:
(a) Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; ;
(ii) Lessee Debtor, without the prior consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its material insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor materially breaches any of its other material obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party after notice to the Debtor subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor materially breaches or is in material default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; Collateral;
(ixxiii) Lessee default Debtor materially defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any material lease agreement; ;
(xxiv) there is At any dissolution, termination time during the term of this Agreement Debtor sells more than 50% of its interest in the company to another corporation or existence, merger, consolidation business or change in controlling ownership all or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or substantially all of its assets without Secured Party’s prior written consent;
(xixv) there There is a material adverse change in the Lessee's Debtor’s financial condition. The default declaration “Material Adverse Change” shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a defaultbe defined as any adverse change in the Debtor’s balance sheet which, at in the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession sole reasonable judgement of the Equipment. Lessee shall immediately pay Secured Party, materially impairs Debtor’s ability to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, repay the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveIndebtedness.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Master Security Agreement, Master Security Agreement (Aveo Pharmaceuticals Inc)
Default and Remedies. (a) Lessor may 9.1 In the event of a default, breach, or a breach of warranty or representation contained in writing declare this Agreement and prior to the exercise of the rights hereinafter provided to either party, the defaulting party shall be entitled to written notice of the specific default, breach, or other problem and to fifteen (15) calendar days after the receipt of that written notice in which to cure said default, breach or other problem. If such default, breach or other problem is not corrected within that period, then an event of default if: (i) Lessee shall have occurred and the parties shall be entitled to the rights and remedies hereinafter set forth.
9.2 In the event Seller breaches its obligation any warranty or representation contained in this Agreement or fails to pay rent comply with or perform any of the conditions, covenants, or agreements contained herein and further provided that Seller fails to cure after written notice, then, at Buyer’s option:
9.2.1 Buyer shall be entitled, upon giving written notice to Seller, to terminate this Agreement whereupon neither Buyer nor Seller shall have any further rights or obligations under this Agreement, except those which are expressly stated to survive.
9.3 In the event Buyer fails to comply with or perform any of the covenants, agreements or other sum when due obligations to be performed by Buyer and fails to cure such problem within the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement period provided above, the Seller shall be false entitled, as its sole right and exclusive remedy, to receive the Xxxxxxx Money previously paid by the Buyer as full, final and complete liquidated damages in accordance with and under the authority contained in O.C.G.A. Section 13-6-7. Buyer and Seller understand and agree that (i) actual damages would be difficult or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases impossible to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and ascertain in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee such default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) breach and (ii) above.
(c) The foregoing remedies are cumulativethe sum specified as liquidated damages is a reasonable estimation of the probable loss which would be sustained by the Seller by reason of such default or breach, and is not a penalty or forfeiture. Seller hereby waives any right to damages (except as described in this Section 9.3 and except as to any indemnities contained in this Agreement which by their express terms are to survive the Closing or all thereof may be exercised instead termination of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of ) and Seller waives any default shall not be a waiver of any other or subsequent defaultright to specific performance against Buyer.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Default and Remedies. (a) Lessor PDI may in writing declare this Agreement in default if: :
(i) Lessee LESSEE breaches its obligation to pay rent payment due hereunder or under any Schedule hereto or any other sum when due and fails to cure the breach within ten (10) days; ;
(ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee LESSEE breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; PDI;
(iviii) any representation or warranty made by Lessee LESSEE in connection with this Agreement shall be which is false or misleading in any material respect; ;
(viv) Lessee LESSEE or any guarantor or other obligor for the LesseeLESSEE's obligations hereunder ("GUARANTORGuarantor") becomes insolvent or ceases to do business as a going concern; ;
(viv) any Equipment is used illegally used; or in such a manner as to cause unreasonable risk of harm as may be deemed by PDI in its sole discretion;
(viivi) if Lessee LESSEE or any Guarantor is a natural person, any death or incompetency of Lessee LESSEE or such Guarantor; ;
(viiivii) a petition is filed by or against Lessee LESSEE or any Guarantor under any bankruptcy or insolvency laws and (in the event of an involuntary petition, ) the petition is not dismissed, dismissed within forty-five (45) days of the filing date;
(viii) any Guarantor revokes or attempts to revoke its guaranty or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party; or
(ix) Lessee default LESSEE defaults under any other material obligation for (A) borrowed money, (B) making the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change this agreement in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial conditiontimely fashion. The default declaration shall apply to all Schedules unless specifically excepted accepted by LessorPDI.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee The LESSEE shall pay LessorPDI's actual attorney's fees and costs incurred in connection with the enforcement, assertion, defense or preservation of LessorPDI's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Equipment Leasing Agreement (Powerdyne International, Inc.), Equipment Leasing Agreement (Powerdyne International, Inc.)
Default and Remedies. Section 24.01 The occurrence of any one or more of the following events shall, at Landlord’s option, constitute an event of default of this Lease:
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation if Tenant fails to pay rent any Rental by the first day of each month or any fails to pay other sum when due sums payable by Tenant hereunder by the first day of each month and fails to pay such sums within three (3) days of written notice thereof from Landlord (provided, however, if such event of default shall occur more than once in every 6 months period, Landlord shall not be required to provide any written notice of default, not provide any cure the breach within ten period and an event of default shall occur as and when such Rental or other sums becomes due and payable; or
(10b) days; (ii) Lessee breaches if Tenant shall fail to perform or observe any other term hereof or any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations the Rules and fails to cure that breach within thirty (30) Regulations and such failure shall continue for more than 30 days after written notice thereof from Lessor; Landlord.
(iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (viic) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee Tenant or any Guarantor guarantor of Tenant’s obligations under this Lease under any bankruptcy section or insolvency laws chapter of the present or future Bankruptcy Code or under any similar law or statute of the United States or any state thereof;
(d) if Tenant or guarantor of Tenant’s obligations under this Lease becomes insolvent or is determined to be insolvent or makes a transfer in fraud of creditors;
(e) if Tenant fails to take occupancy within 30 days of the commencement date;
(f) if Tenant or guarantor of tenant’s obligations under this Lease, makes an assignment for the benefit of creditors; or
(g) if a receiver, custodian or trustee is appointed for Tenant or for any of the assets of the Tenant which appointment is not vacated within 30 days of the date of such appointment.
Section 24.02 If an event of default occurs, at any time thereafter Landlord may do one or more of the following without any additional notice or demand:
(a) Terminate this Lease by giving written notice of the termination to the Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy Landlord may have, enter upon and take possession of the Premises and expel or remove Tenant and its effects without being liable to prosecution or any claim for damages therefore; and Tenant shall be liable to Landlord for all loss and damage which Landlord may suffer by reason of such termination, whether through inability to re-let the Premises or otherwise, including any loss of Rental for the remainder of the Term. Any such loss of Rental shall be offset by any Rental received by Landlord as a result of re-letting the Premises during the remainder of the Term.
(b) Terminate this Lease, in which event Tenant’s event of default shall be considered a total breach of Tenant’s obligations under this Lease and Tenant immediately shall become liable for such damages for such breach amount, equal to the total of:
(1) the costs of recovering the Premises;
(2) the unpaid Rental due for the remaining term as of the date of termination, plus interest thereon at a rate per annum from the due date equal to 5% over the Prime Rate.
(3) the total Rental and other benefits which Landlord would have received under the Lease for the remainder of the Term, at the rates then in effect, together with all other expenses incurred by Landlord in connection with Tenant’s default.
(4) all other sums of money and damages owing by Tenant and Landlord.
(c) Enter upon and take possession of the Premises as Tenant’s agent without terminating this Lease and without being liable to prosecution or any claim for damages therefore, and Landlord may re-let the Premises as Tenant’s agent and receive the Rental therefore, in which event Tenant shall pay to Landlord on demand the reasonable cost of renovating and repairing the Premises for a new Tenant or Tenants and any deficiency that may arise by reason of such re-letting; shall not release or affect Tenant’s liability for Rental or for damages.
(d) Upon the occurrence of any Event of Default which is not cured by the Tenant within the period of time provided herein, if any is so provided by the terms of this Lease, the Tenant hereby empowers any Prothonotary or any attorney of any court of record within the United States or elsewhere to appear for the Tenant, with declaration filed, and confess judgment against the Tenant in favor of the Landlord, its successors or assigns, as of any term, for any determined amount to which the Landlord would be entitled as damages under the provisions hereof including also any attorney fees for collection of the same plus ten percent (10%) of the total amount of such damages, together with costs of suit, and the Tenant hereby waives all errors, defects and imperfections in entering said judgment or in any writ, or process, or proceeding thereon or thereto or in anyway touching or concerning the same; and for the confession and entry of such judgment, this Lease or a true and correct copy thereof shall be sufficient warrant and authority. The authority and power contained herein shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as there is an occurrence of any Event of Default which is not cured by the Tenant as provided herein, or in the event of an involuntary petitionEvent of Default as defined herein; and furthermore such authority and power may be exercised during the original and any extension or renewal thereof, or after the petition is not dismissed, within forty-five (45) days expiration or earlier termination of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial conditionterm hereof. The default declaration interest rate of one and one-half percent per month (1.5% per month) shall apply to all Schedules unless specifically excepted by Lessorsurvive the entering of judgment.
(be) After a defaultWhen this lease shall be terminated or cancelled by reason of breach of any provision hereof, at either during the request original term of Lessorthis lease or any renewal thereof, Lessee and also as soon as the term hereby created or any renewal thereof shall comply with have expired, it shall be lawful for any attorney as attorney for Tenant to file an agreement for entering in any court of competent jurisdiction an amicable action and confession of judgment in ejectment against the provisions Tenant and all persons claiming under the Tenant for the recovery by the Landlord of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee Premise, for which this lease or a true and correct copy thereof shall immediately pay be his sufficient warrant, whereupon, if the Landlord so desires, a writ of possession may issue forthwith, without any prior writ or proceedings whatsoever, and provided that if for any reason after such action shall have commenced the same shall be terminated and possession remain in or be restored to Lessor without further demand as liquidated damages for loss of a bargain and not as a penaltythe Tenant, the Stipulated Loss Value Landlord shall have the right upon any subsequent default or defaults, or upon the termination or cancellation of this lease as hereinbefore set forth, to bring one or more amicable action or actions as hereinbefore set forth to recover possession as aforesaid.
(f) Do whatever Tenant is obligated to do under this Lease and may enter the Equipment (calculated as of the rent payment date prior Premises without being liable to the declaration of default)prosecution or any claim for damages therefore, to accomplish this purpose. Tenant shall reimburse Landlord immediately upon demand for any expenses which Landlord incurs in thus effecting compliance with this Lease on Tenant’s behalf, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but Landlord shall not be required toliable for any damages suffered by Tenant from such action, sell Equipment at private unless caused by the negligence or public sale, in bulk willful misconduct of Landlord or in parcels, with otherwise.
Section 24.03 No act or without noticething done by Landlord or its agents during the Term shall constitute an acceptance of an attempted surrender of the Premises, and without having no agreement to accept a surrender of the Equipment present Premises or to terminate this Lease shall be valid unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease, unless a written notice of such intention is given to Tenant. Notwithstanding any such re-letting or re-entry or taking possession, Landlord may at the place any time thereafter terminate this Lease for a previous default. Landlord’s acceptance of sale. Lessor may also, but partial payment of Rental following an event of default hereunder shall not be required to, lease, otherwise dispose construed as a waiver of or keep idle all or part such event of the Equipmentdefault. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid No waiver by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place Landlord of any advertising. Lessee breach of this Lease shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be constitute a waiver of any other violation or subsequent defaultbreach of any time of the terms hereof. Forbearance by Landlord to enforce one or more of the remedies herein provided upon a breach hereof shall not constitute a waiver of any other breach of the Lease.
(d) Any default under Section 24.04 No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing and signed by Landlord nor shall any custom or practice which may evolve between the parties in the administration of the terms of this Lease be constituted to waive or any lessen Landlord’s right to insist upon strict performance of the terms of this Lease. The rights granted to Landlord in this Lease shall be cumulative of every other agreement between Lessor right or remedy which Landlord may otherwise have at law or in equity or by statue, and Lessee may be declared by Lessor a default under this and any such the exercise of one or more rights or remedies shall not prejudice or impair the current or subsequent exercise of other agreementrights or remedies.
Appears in 2 contracts
Samples: Office Lease Agreement (Select Medical Corp), Office Lease Agreement (Select Medical Corp)
Default and Remedies. 11.1 An event of default shall occur if (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation fails to pay rent when due any installment of Rent or any other sum when due payable hereunder; provided, however, no event of default shall be deemed to have occurred on account of this clause (a) unless and fails until Lessor has provided Lessee five (5) days written notice of such payment failure and Lessee has failed to cure the breach within ten payment failure during the five (105) daysday period; and provided, further, that Lessee shall only be entitled to such notice and five (5) day non default period an aggregate of twice during the Term and no notice of payment default need be given by Lessor thereafter; (iib) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and either party fails to cure that breach within thirty perform or observe in any material respect any covenant, condition or agreement to be performed or observed by it hereunder, and such failure continues for a period of fifteen (3015) days after written notice from Lessorof such failure (other than the requirement to maintain insurance for which no period of grace shall apply); (ivc) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or either party ceases to do doing business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due or such fact is determined by judicial proceedings, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking for itself any reorganization, rearrangement, composition, readjustment, liquidation, dissolution, or similar arrangement under any present or future statute, law or regulation, or files an answer admitting the material allegations of a petition filed against it in any such proceedings, consents to or acquiesces in the appointment of a trustee, receiver, or liquidator of, all or any substantial part of its assets or properties; (vid) Lessee attempts to move, remove, sell, transfer, encumber, part with possession or sublet the Equipment or any Equipment is illegally useditem thereof in breach of this Lease; or (e) Lessee fails to maintain the insurance required hereunder.
11.2 Upon the occurrence of an event of default, Lessor or Lessee, as applicable, at its option, may take one or more of the following actions: (a) proceed by appropriate court action or actions either at law or in equity to enforce performance by the other party of the applicable covenants and terms of this Lease or to recover from the applicable party, any and all damages or expenses including reasonable attorneys' fees, which the such party shall have sustained by reason of the defaulting party in any covenant or covenants of this Lease or on account of such party's enforcement of its remedies hereunder; (viib) if in the event Lessee has brought about the event of default, terminate Lessee's rights under this Lease whereupon Lessee, at its sole cost and expense, shall cause the Equipment to be delivered to Lessor in accordance with Section 12 hereinbelow; or any Guarantor is a natural person(c) in the event that Lessee has brought about the event of default, any death or incompetency take possession of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws all of the Equipment leased hereunder, and thereupon Lessee's right to the possession thereof shall terminate. Notwithstanding the foregoing, in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days repossession of the filing date; (ixEquipment, Lessor shall not be entitled to receive more than is provided in Section 11.3 below.
11.3 In the event of any such repossession as provided in 11.2(c) Lessee default under above, Lessor may either lease the Equipment or any other material obligation portion thereof for (A) borrowed moneysuch period and rental, (B) the deferred purchase price of propertyand to such persons as Lessor may elect, or (C) payments due under sell the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee Equipment or any Guarantor, but not portion thereof at public or private sale and without demand or notice of intention to include an initial public offeringsell or of sale, or any other stock offering, preferred to common, in which presence of the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, same at the request place of Lessorsale. If any Equipment is sold, leased or otherwise disposed of pursuant to this Subsection 11.3, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay liable to Lessor without further demand for, and Lessor may recover from Lessee, as liquidated damages for loss the breach of a bargain and this Lease but not as a penalty, the Stipulated Loss Value amount by which the proceeds of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (less the expense of retaking, servicing, repairing, demonstrating, storing, leasing, selling or other disposition) is less than the sum of (a) all due and unpaid rent for such Equipment; (b) the time Net Book Value of the Equipment repossessed; (c) an amount equal to due and place thereof)payable impositions, and other amounts payable hereunder by Lessee with respect to such Equipment; and (d) interest at the manner lesser of one and place one-half percent (1-1/2%) per month or the highest legal rate permitted to be contracted for, charged, paid, taken or received under applicable law (the "Maximum Rate") on each of the foregoing and on all sums not paid when due under any provision of this Lease. If on the date of such termination or repossession any Equipment shall be damaged, lost, stolen or destroyed, or be subject to any levy, seizure, assignment, application for sale for or by any creditor or governmental agency, other than damages caused by or attributable to Lessor or its agents, Lessee shall also be liable to Lessor as provided in Section 8 with regard to such Equipment, less the amount of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred insurance recovery received by Lessor in connection with the enforcement, assertion, defense therewith.
11.4 No right or preservation remedy conferred upon or reserved to Lessor by this Lease shall be exclusive of Lessor's any other right or remedy herein or by law provided; all rights and remedies under of Lessor conferred upon Lessor by this Agreement, Lease or if prohibited by law, such lesser sum as may law shall be permitted. Waiver cumulative and in addition to every other right and remedy available to Lessor.
11.5 In the event of any default default, the defaulting party shall not be pay to the non defaulting party a waiver reasonable sum for attorneys' fees and such costs and expenses as shall have been incurred by the non defaulting party in the enforcement of any other right or subsequent defaultprivilege hereunder.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Equipment Lease Agreement (Aviation Sales Co), Equipment Lease Agreement (Kellstrom Industries Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; ;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) There is a material adverse change in the Debtor’s financial condition as determined solely by Secured Party;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the filing date; Indebtedness or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party;
(ixxv) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; or
(xxvi) there is At any dissolution, termination time during the term of this Agreement Debtor experiences a change of control such that any person or existence, merger, consolidation entity acquires either more than 50% of the voting stock of Debtor or change in controlling ownership all or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to commonsubstantially all of Debtor’s assets, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessoreither case, without Secured Party’s prior written consent.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulativeDebtor agrees to pay all reasonable attorneys’ fees and other fees, costs and any or all thereof may be exercised instead expenses incurred by Secured Party (including, without limitation, the allocated cost of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in-house legal counsel) in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement, Master Security Agreement (NovaBay Pharmaceuticals, Inc.)
Default and Remedies. All rights and remedies of the Landlord herein enumerated shall be cumulative, and none shall exclude another or any other right or remedy provided by law.
(a) Lessor If Tenant or any guarantor of this Lease shall become bankrupt or insolvent or unable to pay its debts as such become due, or file any debtor proceedings or if Tenant or any guarantor shall take or have taken against either party in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency which has not been dismissed within one hundred twenty (120) days or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement with its creditors, then this Lease shall terminate and Landlord, in addition to any other rights or remedies it may have, shall have the immediate right of reentry and may remove all persons and property from the Premises and such property may be removed and stored in writing declare a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
(b) If the Tenant defaults in the payment of Rent or in the prompt and full performance of any provisions of this Agreement Lease, or if the leasehold interest or the Tenant's business or fixtures of Tenant are levied upon under execution or attached by process of law, or if the Tenant makes an assignment for the benefit of creditors, or if a receiver is appointed for any property of the Tenant, or if the Tenant abandons the Premises, or if Tenant fails to cure a monetary or non-monetary default within five (5) days after written notice thereof, or if said non-monetary default is of such a nature that same cannot be cured within five (5) days, Tenant fails to diligently commence to cure within that time and thereafter continues to proceed to cure same, then Landlord at its option, may forthwith terminate this Lease and the Tenant's right to possession of the Premises, or terminate only Tenant's right to possession hereunder.
(c) Upon any termination of this Lease, whether by lapse of time or otherwise, the Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to the Landlord, and hereby grants to the Landlord full and free license to enter into and upon the Premises in default if: such event with process of law and to expel or remove the Tenant and any others who may be occupying or within the Premises and to remove any and all property therefrom, using such force as may be allowed by law without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and without relinquishing the Landlord's rights to Rent or another right given to Landlord hereunder or by operation of law.
(d) If the Tenant abandons the Premises or otherwise entitles the Landlord so to elect, and the Landlord does elect to terminate the Tenant's rights to possession only, without terminating the Lease, the Landlord may, at the Landlord's option, enter into the Premises, remove the Tenant's signs and other evidence of tenancy, and to take and hold possession thereof without such entry and possession terminating the Lease or releasing the Tenant, in whole or in part, from the Tenant's obligation to pay the Rent hereunder for the full term, and in any such case the Tenant shall pay forthwith to the Landlord a sum equal to the entire amount of the Rent reserved for the remainder of the stated term plus any other sums then due hereunder. Upon and after entry into possession without termination of the Lease, the Landlord may, but need not, relet the Premises or any part thereof for the account of the Tenant to any person, firm or corporation other than the Tenant for such Rent, for such time and upon such terms as the Landlord, in the Landlord's sole discretion, shall determine; and the Landlord shall not be required to accept any tenant offered by the Tenant or to observe any instruction given by the Tenant about such reletting. In any such case, the Landlord may make repairs, alteration and additions in or to the Premises and redecorate the same to the extent deemed by the Landlord necessary or desirable, and the Tenant shall, upon demand, pay the cost thereof, together with all of Landlord's expenses of the reletting, including by way of example, but not by way of limitation advertising expenses, commissions, broker's fees, etc. If the consideration collected by the Landlord upon any such reletting for the Tenant's account is not sufficient to pay monthly the full amount of the Rent reserved in this Lease, together with the costs of repairs, alterations, additions, redecorating and the Landlord's expenses, the Tenant shall pay to the Landlord the amount of each monthly deficiency upon demand.
(e) Any and all property which may be removed from the Premises by the Landlord pursuant to the authority of this Lease or of law, to which the Tenant is or may be entitled, may be handled, removed or stored by Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. Tenant shall pay to Landlord, upon demand, all expenses incurred in such removal and all storage charges against such property so long as the same shall be in the Landlord's possession or under Landlord's control. Landlord may place such property in storage for the account of, and at the expense of Tenant and if Tenant fails to pay the cost of storing such property after it has been stored for a period of ninety (90) days or more, Landlord may sell any or all of such property in such manner and at such times and places as Landlord, in its sole discretion, may deem proper, without notice to or demand upon Tenant for the payment of any part of such charges of the removal of any of such property and shall apply the proceeds of such sale first to the cost of expenses of such sale, including reasonable attorneys' fees; second, to the payment of the costs and charges of storing any property; third, to the payment of any other sums of money which may then or thereafter be due to Landlord from Tenant under any of the terms hereof; and fourth, the balance, if any, to Tenant. the removal and storage of Tenant's property as above provided shall not constitute a waiver of Landlord's lien thereon.
(f) Tenant shall pay upon demand all of Landlord's costs, charges and expenses, including the fees of counsel, agents and others retained by Landlord, incurred in enforcing Tenant's obligations hereunder or incurred by Landlord in any litigation, negotiation or transaction in which Tenant causes Landlord, without Landlord's fault, to become involved or concerned. Attorney's fees shall be awardable for all phases of litigation, trial, as well as appellate.
(g) To perfect and assist in the implementation of certain of Landlord's rights in and to the Tenant's personal property, Tenant hereby pledges and assigns to Landlord and grants unto Landlord a lien upon all furniture, fixtures, goods and chattels of Tenant which shall or may be bought or put on the Premises as further security for the faithful performance of the terms, provisions, conditions and covenants of this Lease. Tenant specifically agrees that said lien may be enforced by distress, foreclosure or otherwise at the election of the Landlord. Tenant hereby expressly waives and renounces for himself and family any and all homestead and exemption right he may have now hereafter, under or by virtue of the Constitution or laws of the State of Florida, or of any other state, or of the United States, as against the payment of Rent, Additional Rent or any other charges payable by Tenant hereunder or any other obligation or damage that may accrue under the terms of this Agreement.
(h) Notwithstanding any contrary provision of this Lease, Tenant shall look solely to the interest of Landlord or its successor (as Landlord hereunder) in the real property of which the Leased Premises are a part for the satisfaction of any judgment or judicial process requiring the payment of money as a result of any negligence or breach of this Lease by Landlord or such successor, and no other assets of Landlord or its successor shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant's remedies in any of such events. Tenant's sole right and remedy in any action or proceeding concerning Landlord's reasonableness (where the same is required under this Lease) shall be an action for declaratory judgment and/or specific performance.
(i) Lessee breaches its If Tenant shall fail to observe or perform any term or condition on Tenant's part to be observed or performed under this Lease, then Landlord may, after providing the notice required in subparagraph (b) above, perform the same for the account of Tenant, and if Landlord shall make any expenditure or incur any obligation for the payment of money in connection therewith (including reasonable attorneys' fees in instituting, prosecuting and/of defending any action or proceeding through appeal), the sums paid or obligations incurred, with interest as specified in Paragraph 1 hereof, and costs shall be deemed to pay rent or any other sum when due be Additional Rent hereunder and fails shall be paid by Tenant to cure the breach Landlord within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss rendition of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any xxxx or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovestatement therefor.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Lease Agreement (Medical Makeover Corp of America), Lease Agreement (Medical Makeover Corp of America)
Default and Remedies. An event of default ("Event of Default") shall be deemed to have occurred hereunder upon the occurrence of one or more of the following:
(a) Lessor may in writing declare this Agreement in default if: Client shall fail to pay, (i) Lessee breaches its obligation when and as required to pay rent be paid herein, any amount on account of repurchasing any Purchased Receivable, or (ii) within ten (10) days after the same shall become due, any other amount payable hereunder; or
(b) Servicer (i) commences any insolvency proceeding with respect to itself; or (ii) takes any action to effectuate or authorize the foregoing; or
(c) Any involuntary lien, garnishment, attachment or the like shall be issued against or shall attach to the Purchased Receivables, the Collateral or any other sum when due portion thereof and the same is not released or Client fails to cure the breach repurchase such Purchased Receivables within ten (10) days;
(i) Any involuntary insolvency proceeding is commenced or filed against Servicer; or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of Servicer's properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within 60 days after commencement, filing or levy;
(ii) Lessee breaches Servicer admits the material allegations of a petition against it in any of its insurance obligations insolvency proceeding, or an order for relief (or similar order under Section 9non-U.S. law) is ordered in any insolvency proceeding; or
(iii) Lessee breaches any Servicer acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar person for itself or a substantial portion of its other obligations property or business; or
(e) Client, including in its role as Servicer hereunder, shall breach any covenant or agreement set forth herein, or any warranty or representation set forth herein shall be untrue when made, and fails the same is not cured to cure that breach BofA's reasonable satisfaction within thirty ten (3010) days after written notice from Lessor; such breach or occurrence;
(ivf) Any report, certificate, schedule, financial statement, profit and loss statement or other statement furnished by Servicer, or by any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading other person on behalf of Client, to BofA is not true and correct in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business respect as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; date given.
(ixg) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a A material adverse change shall have occurred in the LesseeServicer's financial conditionconditions, business or operations that would materially impair Servicer's ability to perform its obligations hereunder. The default declaration Upon the occurrence and during the continuance of any such Event of Default, BofA (i) shall apply have no further obligation to take any action after Client's tender of Receivables for purchase and (ii) may immediately exercise its rights and remedies hereunder or pursuant to applicable law with respect to the Purchased Receivables, including giving notice to each Approved Account Debtor to remit payment of all Schedules unless specifically excepted amounts payable under any Purchased Receivable directly to BofA or to an account identified by Lessor.
(b) After a defaultBofA; provided, at the request of Lessorhowever, Lessee shall comply with that BofA will hold all collections that are not Remittances in trust for Client and, subject to the provisions of Section 9(a5(d) and the following provisions shall apply also. Lessee hereby authorizes Lessor hereof, will deliver such collections to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveClient promptly.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Accounts Receivable Transfer Agreement (Applied Materials Inc /De), Accounts Receivable Transfer Agreement (Applied Materials Inc /De)
Default and Remedies. (a) Lessor may in writing declare The occurrence of any one or more of the following events shall constitute an "Event of Default" under this Agreement in default if: and each of the other Debt Documents:
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; ;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does relocate, move, sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 5;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Obligations shall be false or misleading in any material respect; respect as of the date made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Obligations (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) Any Material Adverse Change has occurred, as determined solely by Secured Party;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the filing date; Obligations or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party;
(ixxv) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; or
(xxvi) there is At any dissolution, termination time during the term of this Agreement Debtor experiences a change of control such that any person or existence, merger, consolidation entity acquires either more than 50% of the voting stock of Debtor or change in controlling ownership all or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to commonsubstantially all of Debtor's assets, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lesseeeither case, without Secured Party's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorprior written consent.
(b) After a defaultUpon the occurrence and during the continuance of an Event of Default, Secured Party, at its option, may declare any or all of the request Obligations to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) Upon the occurrence and during the continuance of an Event of Default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee Collateral from the premises or store it on the premises (provided, however, that any such action by Secured Party shall immediately pay be carried out in a manner that complies with the provisions of any estoppel, consent or similar agreement between Secured Party and any third parties pertaining to Lessor without further demand as liquidated damages for loss the Collateral), (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of default)Obligations. If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee Collateral unusable at Debtor's premises and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied in applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the following order Obligations; third, to discharge any other obligation or indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulativeDebtor agrees to pay all reasonable attorneys' fees and other fees, costs and any or all thereof may be exercised instead expenses incurred by Secured Party (including, without limitation, the allocated cost of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in-house legal counsel) in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall be part of the Obligations.
(f) Secured Party's rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE OBLIGATIONS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. FOR THE PURPOSE OF ANY ENFORCEMENT BY SECURED PARTY OF ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT IN THE UNITED STATES, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO ANY DEBT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, DEBTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTIONS. EACH DEBTOR (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND OTHER DOCUMENTS AND OTHER SERVICE OF PROCESS OF ANY KIND AND CONSENTS TO SUCH SERVICE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE UNITED STATES OF AMERICA WITH RESPECT TO OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH ANY DEBT DOCUMENT BY ANY MEANS PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, INCLUDING BY THE MAILING THEREOF (BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) TO THE ADDRESS OF THE DEBTOR SPECIFIED IN PREAMBLE HERETO (AND SHALL BE EFFECTIVE WHEN SUCH MAILING SHALL BE EFFECTIVE, AS PROVIDED THEREIN). EACH DEBTOR (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. FOR THE PURPOSE OF ANY ENFORCEMENT BY SECURED PARTY OF ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, (i) IN THE UNITED KINGDOM DEBTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS AND HEREBY APPOINTS LAW DEBENTURE CORPORATE SERVICES LIMITED WHOSE ADDRESS IS XXXXX XXXXX, 000 XXXX XXXXXX, XXXXXX, XX0X 0XX AS ITS AGENT FOR SERVICE OF ANY LEGAL PROCEEDINGS IN THE ENGLISH COURTS AND (ii) IN GERMANY, DEBTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE GERMAN COURTS AND HEREBY APPOINTS XX. XXX XXXXXXXXXXX, XXXXXXX MASSENKEIL XXXXXX & PARTNER, XXXXXxXXXXxX 0, 00000 XXXXXXXX ITS AGENT FOR SERVICE OF ANY LEGAL PROCEEDINGS IN THE GERMAN COURTS. DEBTOR WILL MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN EACH OF ENGLAND AND GERMANY.
Appears in 2 contracts
Samples: Master Loan and Security Agreement (Zogenix Inc), Master Loan and Security Agreement (Zogenix Inc)
Default and Remedies. (a) Lessor may Lessee shall be in writing declare default under this Agreement in default if: (i) Lessee breaches its obligation fails to pay rent Rent or any other sum when payment due and fails to cure owing hereunder, including an tax indemnity set forth in Section 18, within five (5) business days of the breach within ten (10) daysdue date thereof; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee herein or in any document delivered to Lessor in connection with this Agreement herewith shall prove to be false or misleading and the false or misleading nature of such representation or warranty is not corrected within thirty (30) days following receipt of written notice thereof from Lessor; (iii) a breach of the covenant set forth in Section 18(b) or Section 26(c) shall have occurred; (iv) a Lease fails to be considered a “true lease” for federal income tax purposes as a result of any material respectact, omission, breach of warranty or covenant or misrepresentation by Lessee; (v) Lessee becomes insolvent, dissolves, or any guarantor or other obligor assigns its assets for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent benefit of creditors, or ceases to do business as a going concernenters any bankruptcy or reorganization proceeding; (vi) unless the CAAA is in full force and effect, (A) any Project Document (including the Power Purchase Agreement) has been terminated without the prior written approval of Lessor or (B) any default has occurred and is continuing under any provision of a Project Document (including the Power Purchase Agreement) and any cure period provided thereunder has terminated without such default having been cured, in each case, relating to any Equipment is illegally usedsubject to a Lease; (vii) if Lessee fails to observe, keep or perform any other term or condition of this Agreement or any Guarantor is a natural person, any death or incompetency other Lease Document and such failure continues for thirty (30) days following receipt of Lessee or such Guarantorwritten notice from Lessor; (viii) Lessee undergoes a petition is filed by Change in Control (as defined below) without the prior written approval of Lessor, where “Change in Control” means any reorganization, recapitalization, consolidation or against merger (or similar transaction or series of related transactions) of Lessee in which the holders of Lessee’s outstanding shares immediately before consummation of such transaction or any Guarantor under any bankruptcy series of related transactions do not, immediately after consummation of such transaction or insolvency laws and in the event series of an involuntary petitionrelated transactions, the petition is not dismissed, within forty-five retain shares representing more than fifty percent (4550%) days of the filing datevoting power of the surviving entity or such transaction or series of related transactions (or the parent of such surviving entity if such surviving entity is wholly owned by such parent), in each case without regard to whether Lessee is the surviving entity; (ix) Lessee default under any the CAAA is no longer in full force and effect other material obligation for than as a result of the Buyout Option (Aas defined in the CAAA) borrowed money, or the Assumption Option (Bas defined in the CAAA) having been effectuated pursuant to the deferred purchase price of property, or (C) payments due under the lease agreementCAAA; and/or (x) there any payment default has occurred and is continuing under any dissolution, termination master lease agreement that currently or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement hereinafter exist between Lessor and Lessee may be declared by Lessor or any affiliate of Lessee (after giving effect to any applicable grace or cure periods therein) (each of (i) through (x), a default under this and any such other agreement“Default”).
Appears in 2 contracts
Samples: Master Lease Agreement, Master Lease Agreement (Plug Power Inc)
Default and Remedies. (a) The occurrences of any of the following events shall constitute an Event of Default hereunder, and shall permit Lessor may to exercise the remedies provided in writing declare this Agreement in default if: Section 17(b) below, including the termination of Lessee’s right to possession of the Equipment and Collateral:
(i) Lessee breaches its obligation to pay rent The non-payment when due, of any installment of Rent or any other sum when due and fails required hereunder to cure the breach within ten (10) days; be paid by Lessee;
(ii) The failure by Lessee breaches to perform any other material term, obligation, covenant or condition under any of its insurance obligations under Section 9; the Lease Documents that is not cured within twenty (20) days after such failure;
(iii) The non-payment by Lessee breaches when due or default in the performance of any other indebtedness or obligation to Lessor or any parent, subsidiary or affiliated company of its other obligations and fails Lessor (subject to any applicable cure that breach within thirty (30) days after written notice from Lessor; periods).
(iv) The subjection of a substantial part of Lessee’s property or any part of the Equipment or Collateral to any Lien other than a Permitted Lien;
(v) Lessee shall be in default under the terms of any contract with any Person requiring the payment of money by Lessee in an amount greater than or equal to $75,000;
(vi) In the event that (A) Lessee shall (1) authorize or agree to the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, receivership or other similar Law now or hereafter in effect that authorizes the reorganization or liquidation of such party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, (2) make a general assignment for the benefit of its creditors, (3) fail generally or admit in writing its inability to pay its debts as they become due, (4) take any corporate action to authorize any of the foregoing or (5) have an involuntary or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period exceeding 60 days; or (B) an order for relief pursuant to such applicable debtor/creditor law shall have been entered against Lessee;
(vii) If any representation or warranty made by Lessee herein, or made by Lessee in any statement or certificate furnished by the Lessee in connection with the execution of this Agreement shall be false Lease or misleading the delivery of any items of Equipment hereunder or furnished by the Lessee pursuant hereto, proves untrue in any material respect; respect as of the date of the issuance or making thereof;
(viii) The issuance of any writ or order of attachment or execution or other legal process against any Equipment or any Collateral which is not discharged, stayed, or satisfied within fifteen (15) days;
(ix) The occurrence of any event or condition described in subsections (iv), (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; ), (vi) any Equipment is illegally used; ), or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under hereof with respect to any other material obligation party liable, in whole or in part, for (A) borrowed money, (B) the deferred purchase price performance of property, or (C) payments due any of Lessee’s obligations under the lease agreementthis Lease; and
(x) there is any dissolutionOne or more final judgments, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringorders, or any other stock offeringdecrees for the payment of money in an amount, preferred to common, in which the primary purpose is to raise cash equity; individually or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration aggregate, of at least One Hundred Fifty Thousand Dollars ($150,000) (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall apply be rendered against Lessee and the same are not, within fifteen (15) days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to all Schedules unless specifically excepted by Lessorthe expiration of any such stay.
(b) After a defaultUpon the continuance of any of the above Events of Default, at the request of Lessor, Lessor may declare this Lease in Default. Such declaration shall be by written notice to Lessee shall comply with the provisions of Section 9(a) and the following provisions if so stated in such notice shall apply alsoto all Equipment and Collateral subject hereto. Lessee hereby authorizes Lessor at any time thereafter to peacefully enter with or without legal process any premises where any the Equipment or Collateral may be and take possession of the Equipmentthereof. Lessee shall immediately shall, without further demand, forthwith pay to Lessor without further demand an amount that is equal to any unpaid Rent due on or before Lessor has declared this Lease to be in Default plus, as liquidated damages for loss of a bargain and not as a penalty, an amount equal to the Stipulated Loss Value of the Equipment on the date the Lessor shall declare this Lease in Default (calculated as of in each case together with any Excess Use Fee measured from the rent payment date prior the Lease is declared to be in Default to the declaration date payment is received by Lessor). After an Event of default)Default, to the extent requested by Lessor and subject to the requirements of any Senior Facility, Lessee shall return the Equipment and deliver the Collateral to Lessor in good repair, condition and working order, ordinary wear and tear resulting from permitted use thereof under the terms of this Lease alone excepted, to a location within the continental United States of America specified by Lessor for sale and application as described below. Such Equipment and Collateral shall be carefully crated and shipped, freight, drayage and re-assembly costs prepaid and properly insured, by Lessee, and Lessee shall bear all rents risk of loss until the Equipment and other sums then due under this Agreement and all SchedulesCollateral are delivered to Lessor or its designee. Lessor may terminate this Agreement as shall be entitled to any or all of sell the Equipment. A termination shall occur only upon written notice by Lessor to Lessee Equipment and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment Collateral at private or public salesale within or without the United States of America, in bulk or in parcels, parcels with or without notice, and without having the Equipment or Collateral present at the place of sale, with the privilege of becoming the purchaser thereof. Lessor may also, but shall not be required to, entitled to lease, otherwise dispose of or keep idle all or any part of the Equipment. Equipment or Collateral, and Lessor may use Lessee's ’s premises for a reasonable period of time for any or all of the purposes stated above foregoing without liability for rent, costs, damages or otherwise. Lessor shall also be entitled to draw on any letter of credit or take any deposit, in either case theretofore provided by Lessee to secure its obligations hereunder. The proceeds of sale, lease or other dispositiondisposition of the Equipment and Collateral, if any, or the proceeds of any letter of credit or deposit, if any, shall be applied in the following order of priorities: (i1) to pay all of Lessor's ’s costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipmentthe Equipment and/or Collateral (including, without limitation, reasonable attorneys’ fees, costs and disbursements); then then, (ii2) to the extent not previously paid by Lessee, to pay Lessor the Stipulated Loss Value for the Equipment as set forth above and all other sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid payable by Lessee as liquidated damageshereunder, including any unpaid Rent; and then then, (iv3) any remaining amounts to the Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency for amounts described in clauses (i1) and (ii2) aboveabove forthwith. The exercise of any of the foregoing remedies by Lessor shall not constitute a termination of this Lease unless Lessor so notifies Lessee in writing.
(c) The foregoing Upon the continuance of any Event of Default, Lessor shall be entitled to (i) require the Lessee to assemble the Collateral and make it available at the principal place of business or other places of business of the Lessee to allow the Lessor to take possession or dispose of the Collateral, (ii) subrogate to all of the Lessee’s interests, rights and remedies are cumulativein respect to the Collateral, including the right to stop delivery, and (upon notice from the Lessee that the account debtor has returned, rejected, revoked acceptance of or failed to return the goods or that the goods have been reconsigned or diverted) the right to take possession of and to sell or dispose of the goods, (iii) make any payments or do any acts it considers necessary or reasonable to protect its security interest in the Collateral, and/or (iv) take and maintain possession of and sell or otherwise dispose of any or all thereof may be exercised instead of the Collateral at public or in addition to each other or any remedies at lawprivate sale, in equity, or under statute. Lessee waives and if notice of such sale or of other action by the Lessor is required by Applicable Law, ten (10) day notice after the date of any public sale or the date after which Lessor enters into any private sale shall constitute sufficient notice of Lessor’s disposition (and of the time and place thereof)Collateral, and further provided, (A) the manner and place of Lessor has no obligation to refurbish or otherwise prepare the Collateral for sale, (B) the Lessor may comply with any advertising. Lessee shall pay Lessor's actual attorney's fees incurred applicable state or federal law requirements in connection with a disposition of the enforcementCollateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral, assertion(C) the Lessor may specifically disclaim any warranties of title or the like, defense or preservation and (D) in the event the Lessor sells any Collateral upon credit, the Lessee will be credited only with the principal portion of payments actually made by the purchaser, received by Lessor and applied to the purchase of the Collateral. Lessee grants Lessor the right to enter and occupy any of its premises, without charge, to exercise any of Lessor's ’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultremedies.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Master Lease Agreement (Tabula Rasa HealthCare, Inc.), Master Lease Agreement (Tabula Rasa HealthCare, Inc.)
Default and Remedies. (a) Lessor may in writing declare this Agreement in It shall be deemed an event of default if: hereunder ("Event of Default") if any of the following shall occur:
(i) Lessee breaches its Tenant fails, for any reason, to make any payment of Rent as and when the same is due to be paid hereunder;
(ii) Tenant fails, for any reason, to perform any other covenant, condition, agreement or other obligation on the part of Tenant to pay rent be observed or performed pursuant to this Lease (other than the payment of any Rent) or any other sum when due and fails agreement between the parties, whether or not related to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; Premises;
(iii) Lessee breaches Tenant makes or purports to make a Transfer affecting the Premises, or the Premises shall be used by any of its Person or for any purpose, other obligations than in compliance with and fails to cure that breach within thirty (30) days after written notice from Lessor; as expressly authorized by this Lease;
(iv) Tenant or any representation other occupant of the Premises makes an assignment for the benefit of creditors or warranty becomes bankrupt or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors, or makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation), or steps are taken or action or proceedings commenced by Lessee in connection with this Agreement any Person for the dissolution, winding up or other termination of Tenant's existence or for the liquidation of Tenant's assets (provided the foregoing shall not be false considered an Event of Default hereunder if such steps or misleading in any material respect; action or proceedings are the subject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof);
(v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") Tenant becomes insolvent or ceases to do business as a going concern; insolvent;
(vi) a trustee, receiver, receiver-manager, manager, agent or other like Person is appointed in respect of the assets or business of Tenant or any Equipment is illegally used; other occupant of the Premises;
(vii) if Lessee Tenant attempts to or does abandon the Premises or remove or dispose of any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; goods and chattels from the Premises;
(viii) a petition is writ of execution has been filed by against Tenant or against Lessee this Lease or any Guarantor under goods or other property of Tenant shall at any bankruptcy time be seized or insolvency laws taken in execution or attachment and in the event such writ or seizure or taking remains unsatisfied for a period of an involuntary petition, the petition is not dismissed, within forty-five (455) days or more (provided that the foregoing shall not be considered an Event of Default hereunder if such writ or seizure or taking is the filing datesubject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof); or
(ix) Lessee there is a default under any other material obligation for (A) borrowed money, (B) agreement relating to the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorPremises.
(b) After a defaultIf there is an Event of Default pursuant to:
(i) subsection 16.l(a)(i) which has not been remedied within five (5) business days following Notice from Landlord (which Notice may require any arrears of Rent to be paid to Landlord by way of certified cheque); or
(ii) subsection 16.l(a)(ii) which has not been remedied within fifteen (15) business days after Notice thereof (or such shorter period as expressly provided for herein or, at provided such Event of Default can be cured and Tenant is acting diligently, continuously and in good faith, such longer period as may be reasonably required to complete the request remedying of Lessor, Lessee shall comply with the provisions such Event of Section 9(aDefault); or
(iii) subsection 16.l(a)(v) and Tenant does not render itself solvent, and provide written evidence thereof to Landlord's reasonable satisfaction, within five (5) business days following Notice from Landlord, or if there is any other Event of Default, then, without prejudice to and in addition to any other rights and remedies to which Landlord is entitled pursuant hereto or at law, the then current and the next three (3) months' Rent shall be forthwith due and payable and Landlord shall have the following provisions shall apply also. Lessee hereby authorizes Lessor rights and remedies, all of which are cumulative and not alternative:
(I) to peacefully enter any premises where any Equipment may be and take possession terminate this Lease in respect of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value whole or any part of the Equipment Premises by Notice to Tenant (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but it being understood that actual possession shall not be required toto effect a termination of this Lease and that Notice alone shall be sufficient), it being understood and agreed that, if this Lease is terminated in respect of part of the Premises, this Lease shall thereupon be deemed amended as necessary to give effect thereto without need for further amendment;
(II) to enter the Premises as agent of Tenant and as such agent to relet them for whatever term (which may be for a term extending beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefor and, as the agent of Tenant, to take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving Notice to Tenant, to store the same at the expense and risk of Tenant or to sell Equipment or otherwise dispose of the same at public or private or public sale, in bulk or in parcels, with or sale without further notice, and to make such alterations to the Premises in order to facilitate their re letting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the re-letting of the Premises, less all expenses incurred by Landlord in making the Premises ready for re-letting and in re-letting the Premises, on account of the Rent due and to become due under this Lease and Tenant will be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; no such entry or taking possession of or performing alterations to or re-letting of the Premises Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a Notice of such intention or termination is given by Landlord to Tenant;
(III) to remedy or attempt to remedy any Event of Default in the performance of any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without having any liability to Tenant therefor and without any liability for any damages resulting thereby, and without constituting a re-entry of the Equipment present at Premises or termination of this Lease, and without being in breach of any of Landlord's covenants hereunder and without thereby being deemed to infringe upon any of Tenant's rights pursuant hereto, and, in such case, Tenant will pay to Landlord forthwith upon demand all amounts paid by Landlord to third parties in respect of such Event of Default and all reasonable costs of Landlord in remedying or attempting to remedy any such Event of Default plus fifteen percent (15%) of the place amount of sale. Lessor may alsosuch costs for Landlord's inspection, supervision, overhead and profit;
(IV) to obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but shall not be required tofor such termination, lease, otherwise dispose of or keep idle and all or part of the Equipment. Lessor may use Lessee's premises net amounts actually received by Landlord for a reasonable such period of time for any or all of the purposes stated above without liability for renttime, costsit being agreed that, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order event Landlord terminates this Lease as a result of priorities: (i) an Event of Default, Landlord shall use commercially reasonable efforts to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated mitigate its damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.and
(cV) The foregoing remedies are cumulative, and any or all thereof may be exercised instead if this Lease is terminated due to an Event of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this AgreementDefault, or if prohibited it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant (collectively "Disclaimer"), to obtain payment from Tenant of the value of all tenant inducements which were received by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other agreement between Lessor work for Tenant's benefit completed at Landlord's cost and Lessee may moving allowance, which value shall be declared multiplied by Lessor a default under fraction, the numerator of which shall be the number of months from the date of Disclaimer to the date which would have been the natural expiry of this Lease but for such Disclaimer, and any such other agreementthe denominator of which shall be the total number of months of the Term as originally agreed upon.
Appears in 2 contracts
Samples: Multi Tenant Industrial Lease (Algae Dynamics Corp.), Multi Tenant Industrial Lease (Algae Dynamics Corp.)
Default and Remedies. In addition to the defaults described in Section 22 hereinabove and in Section 27 hereafter, the occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant: (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation the failure to pay rent any rental or any other sum when due and fails payment required hereunder to cure or on behalf of Landlord at the breach time or within ten (10) daysthe times herein specified for such payment; (iib) Lessee breaches the failure to perform any of its insurance Tenant's agreements or obligations under Section 9; hereunder (iiiexclusive of a default in the payment of money) Lessee breaches any where such default shall continue for a period of its other obligations and fails to cure that breach within thirty three (303) days after written notice thereof from LessorLandlord to Tenant, which notice shall be deemed to be the statutory notice so long as such notice complies with statutory requirements; (ivc) the vacation or abandonment of the Demised Premises by Tenant; (d) the making by Tenant of a general assignment for the benefit of creditors; (e) the filing by Tenant of a voluntary petition in bankruptcy or the adjudication of Tenant as a bankrupt; (f) the appointment of a receiver to take possession of all or substantially all the assets of Tenant located at the Demised Premises or of Tenant's leasehold interest in the Demised Premises; (g) the filing by any representation creditor of Tenant of an involuntary petition in bankruptcy which is not dismissed within sixty (60) days after filing; or warranty made (h) the attachment, execution or other judicial seizure of all or substantially all of the assets of Tenant or Tenant's leasehold where such an attachment, execution or seizure is not discharged within sixty (60) days. Any repetitive failure by Lessee in connection with this Agreement Tenant to perform its agreements and obligations hereunder, though intermittently cured, shall be false deemed an incurable default. Two (2) breaches of the same covenant within a sixty (60) day period, a notice having been given pursuant to (a) or misleading in any material respect; (vb) Lessee or any guarantor or other obligor above for the Lessee's first breach, or three (3) such breaches at any time during the term of this Lease for which notices pursuant to (a) or (b) above were given for the first two (2) breaches shall conclusively be deemed to be an incurable repetitive failure by Tenant to perform its obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in hereunder. In the event of an involuntary petitionany such default or breach by Tenant, Landlord may at any time thereafter, without further notice or demand, rectify or cure such default, and any sums expended by Landlord for such purposes shall be paid by Tenant to Landlord upon demand and as additional rental hereunder. In the event of any such default or breach by Tenant, Landlord shall have the right to continue the Lease in full force and effect and enforce all of its rights and remedies under this Lease, including the right to recover the rental as it becomes due under this Lease, or Landlord shall have the right at any time thereafter to elect to terminate said Lease and Tenant's right to possession thereunder. Upon such termination, Landlord shall have the right to recover from Tenant:
23.1 The worth at the time of award of the unpaid rental which had been earned at the time of termination;
23.2 The worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided;
23.3 The worth at the time of award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided; and
23.4 Any other amount necessary to compensate the Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under the Lease or which in the ordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in Sections 23.1 and 23.2 above shall be computed by allowing interest at three percent (3%) over the prime rate then being charged by Bank of America, N.A., but in no event greater than the maximum rate permitted by law. The worth at the time of award of the amount referred to in Section 23.3 shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1 %), but in no event greater than ten percent (10%). As used herein, "rental" shall include the GMMR, additional rental (percentage rental) payable pursuant to Section 5.2 equal to the average percentage rental paid or payable by Tenant for the last twelve (12) months of the term of this Lease that Tenant has been open for business (or if 12 months have not expired since the Commencement Date, for the actual number of months elapsed since the Commencement Date), other sums payable hereunder which are designated "rental" or "additional rental" and any other sums payable hereunder on a regular basis such as reimbursement for real estate taxes and assessments and expenses for maintaining and operating the parking and common areas (such other sums to be reasonably determined by Landlord). Such efforts as Landlord may make to mitigate the damages caused by Tenant's breach of this Lease shall not constitute a waiver of Landlord's right to recover damages against Tenant hereunder, nor shall anything herein contained affect Landlord's right to indemnification against Tenant for any liability arising prior to the termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify and hold Landlord harmless from any such injuries and damages, including all attorneys' fees and costs incurred by Landlord in defending any action brought against Landlord for any recovery thereof, and in enforcing the terms and provisions of this indemnification against Tenant. Notwithstanding any of the foregoing, the petition is not dismissedbreach of this Lease by Tenant, within forty-five (45) days or an abandonment of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed moneyDemised Premises by Tenant, (B) the deferred purchase price shall not constitute a termination of propertythis Lease, or (C) of Tenant's right of possession hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to enforce all of its rights and remedies under this Lease, including the right to recover rent, and all other payments to be made by Tenant hereunder, as they become due. Failure of Landlord to terminate this Lease shall not prevent Landlord from later terminating this Lease or constitute a waiver of Landlord's right to do so. As security for the performance by Tenant of all of its duties and obligations hereunder, Tenant does hereby assign to Landlord the right, power and authority, during the continuance of this Lease, to collect the rents, issues and profits of the Demised Premises, reserving unto Tenant the right, prior to any breach or default by it hereunder, to collect and retain said rents, issues and profits as they become due under the lease agreement; (x) there is and payable. Upon any dissolution, termination such breach or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, Landlord shall have the right at the request of Lessorany time thereafter, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor without notice except as provided for above, either in person, by agent or by a receiver to peacefully be appointed by a court, enter any premises where any Equipment may be and take possession of the EquipmentDemised Premises and collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Landlord may determine. Lessee shall immediately pay The parties hereto agree that acts of maintenance or preservation or efforts to Lessor without further demand as liquidated damages for loss release the Demised Premises, or the appointment of a bargain and not as a penalty, receiver upon the Stipulated Loss Value initiative of the Equipment (calculated as of the rent payment date prior Landlord to the declaration of default), and all rents and other sums then due protect its interests under this Agreement and all Schedules. Lessor may terminate Lease shall not constitute a termination of Tenant's right of possession for the purposes of this Agreement as to any or all of the Equipment. A termination shall occur only upon Section unless accompanied by a written notice by Lessor from Landlord to Lessee and only as Tenant of Landlord's election to the units so terminate. Acceptance of Equipment specified in any such notice. Lessor may, but rental hereunder shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be deemed a waiver of any other default or subsequent defaulta waiver of any of Landlord's remedies.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Property Lease, Lease Agreement (Stellar Biotechnologies, Inc.)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default ifEach of the following, at the option of Lender, shall constitute an "Event of Default" hereunder: (i) Lessee breaches its obligation to pay rent If an Event of Default occurs under and as defined in any Loan Document, or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches if either Guarantor fails to perform in any material respect any of its insurance obligations under Section 9; the terms, conditions or covenants contained herein within eight (iii8) days following written demand as to any obligation relating to the payment of money (provided, however, that such demand shall not be required in more than two (2) Lessee breaches consecutive months, or three (3) months in the aggregate, in any of its other obligations and fails to cure that breach within calendar year) or thirty (30) days after following written notice from Lessor; demand as to any other obligation (ivprovided that, if such default cannot reasonably be cured within such thirty (30) day period but Guarantors undertake to cure such default within such thirty (30) day period, such thirty (30) day period shall be extended to sixty (60) days), or (iii) if any representation or warranty made by Lessee either Guarantor herein or in writing in connection with this Agreement shall be herewith is false or misleading in any material respect; adverse respect when made, or (viv) Lessee if by decree of a court of competent jurisdiction, either Guarantor shall be adjudicated bankrupt or insolvent, or either Guarantor's property shall have been sequestered, and such decree shall have continued undischarged and unstayed for ninety (90) days after the entry thereof, or if any proceedings under the Federal Bankruptcy Code or any guarantor similar statute applicable to either Guarantor, as now or other obligor for hereafter in effect, shall be instituted against either Guarantor and be consented to by the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee respondent or any Guarantor is a natural person, any death or incompetency of Lessee order for relief shall be entered in such proceeding or such Guarantor; proceeding shall not be dismissed within ninety (viii90) a petition is filed by days after such filing, or if either Guarantor shall institute any such proceeding against Lessee or any either Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertysuch law, or (C) payments if either Guarantor shall make an assignment for the benefit of creditors or shall admit in writing an inability to pay debts generally as they become due under or shall consent to the lease agreement; (x) there is any dissolution, termination appointment of a receiver or existence, merger, consolidation liquidator or change in controlling ownership trustee of either Guarantor or Lessee of all or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorpart of its property.
(b) After a defaultIf any Event of Default occurs hereunder, Lender, without any further demand or proceeding against Borrower, (A) may forthwith recover from either or both Guarantors in the aggregate the full amount of any liability hereunder; and (B) may sell all or any part of any property held as security hereunder on any exchange or at the request public or private sale at its option at any time or times without advertisement or demand upon or notice to either Guarantor (all of Lessorwhich are hereby waived), Lessee shall comply except such notice as is required by applicable statute and cannot be waived, with the provisions right on the part of Section 9(a) and Lender or its nominee, to become the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment purchaser thereof at such sale (calculated as of the rent payment date prior to the declaration of defaultunless prohibited by statute), free from any equity of redemption and from all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveclaims.
(c) The foregoing remedies are cumulativeIf an Event of Default occurs hereunder, each Guarantor shall, in addition to all other liabilities hereunder, be liable to Lender for all costs and expenses, including reasonable attorney's fees and court costs, incurred by Lender in enforcing this Agreement, and any or all thereof may judgment entered against either Guarantor pursuant to this Agreement shall bear interest until paid at the Default Rate and not at the statutory rate of interest after judgment and shall be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place collectible as part of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultjudgment hereunder.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementTHE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST GUARANTORS. IN GRANTING THIS WARRANT OF ATTORNEY, EACH GUARANTOR HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND ON THE ADVICE OF HIS SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS WITH RESPECT TO SUCH WARRANT AND ANY EXECUTION THEREON THAT SUCH GUARANTOR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. EACH GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF RECORD, OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR FOR SUCH GUARANTOR AT ANY TIME OR TIMES DURING THE CONTINUANCE OF AN EVENT OF DEFAULT HEREUNDER, IN ANY SUCH COURT IN ANY ACTION BROUGHT AGAINST SUCH GUARANTOR BY LENDER WITH RESPECT TO THE AGGREGATE AMOUNT PAYABLE HEREUNDER, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST SUCH GUARANTOR FOR ALL SUMS PAYABLE BY SUCH GUARANTOR TO LENDER HEREUNDER, AS EVIDENCED BY AN AFFIDAVIT SIGNED BY A DULY AUTHORIZED DESIGNEE OF LENDER SETTING FORTH SUCH AMOUNT THEN DUE FROM SUCH GUARANTOR TO LENDER, TOGETHER WITH REASONABLE ATTORNEY'S FEES, WITH COSTS OF SUIT, RELEASE OF PROCEDURAL ERRORS. IF A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. EACH GUARANTOR WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT. NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWER TO BRING ANY ACTION OR CONFESS JUDGMENT THEREIN SHALL BE DEEMED TO EXHAUST THE POWER, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT UNTIL ALL AMOUNTS PAYABLE TO LENDER HEREUNDER SHALL HAVE BEEN PAID IN FULL.
Appears in 2 contracts
Samples: Guaranty and Suretyship Agreement (Cedar Income Fund LTD /Md/), Guaranty and Suretyship Agreement (Cedar Income Fund LTD /Md/)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default ifIf any of the following events (an "Event of Default" or collectively "Events of Default") shall have occurred and be continuing, that is to say: (i) Lessee breaches its obligation to pay rent the Maker defaults in the payment of principal of or any other sum interest or premium (if any) on this Note when due and fails the Maker does not cure that default within 3 days after the due date; (ii) the Maker defaults in the performance of any obligation under this Note (other than the payment described in the immediately preceding clause) and the Maker does not cure that default within 30 days after receipt by the Maker of written notice from the Holder; (iii) the Maker defaults in any payment of principal of or interest on any Senior Debt, beyond any period of grace provided with respect thereto or in the performance of any other term or condition contained in any agreement under which any such obligation is created if the effect of such default results in Senior Debt in excess of $1,000,000 becoming due prior to cure the breach its stated maturity without such indebtedness being discharged or such acceleration being rescinded or annulled within ten a period of sixty (1060) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement an order for relief shall be false or misleading entered in any material respectfederal bankruptcy proceeding in which the Maker is the debtor; (v) Lessee or any guarantor bankruptcy, receivership, insolvency, reorganization, relief, dissolution, liquidation or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed similar proceedings shall be instituted by or against Lessee the Maker or all or any Guarantor part of the property of the Maker under the Federal Bankruptcy Code or any other bankruptcy or insolvency law of the United States or any bankruptcy or insolvency laws law of any state of competent jurisdiction unless, if such proceedings are instituted against the Maker, such proceedings are dismissed and in the event of an involuntary petition, the petition is not dismissed, discharged within forty-five ninety (4590) days of the filing dateafter they are instituted; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.or
Appears in 2 contracts
Samples: Subordinated Note (Waterlink Inc), Subordinated Note (Waterlink Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement The Debtor shall be in default if: hereunder upon the occurrence of any one of the following events (each an "Event of Default"):
(i) Lessee breaches its obligation the Debtor shall fail to pay rent or any other sum amount payable in respect of any Liability when due and fails to cure (including the breach within ten (10) days; expiration of any applicable grace periods).
(ii) Lessee breaches any representation, warranty or information herein, heretofore or hereafter furnished to the Secured Party by the Debtor in connection with any of its insurance obligations under Section 9; (iii) Lessee breaches the Liabilities, including any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee the Debtor through the submission of any schedule, statement, certificate or other document pursuant to or in connection with this Agreement Agreement, shall be false or misleading in any material respect; .
(viii) Lessee there shall exist any Potential Default or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business Event of Default as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due defined under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCredit Agreement.
(b) After a defaultUpon the occurrence of any Event of Default which shall be continuing, at (i) unless the request Secured Party elects otherwise, the entire unpaid amount of Lessorsuch of the Liabilities as are not then otherwise due and payable shall become immediately due and payable without notice to or demand on the Debtor, Lessee shall comply with (ii) the provisions of Section 9(a) and Secured Party or its agents may enter the following provisions shall apply also. Lessee hereby authorizes Lessor Debtor's premises to peacefully enter any premises where any Equipment may be and exercise the Secured Party's right to take possession of any Collateral, and (iii) the Equipment. Lessee shall immediately pay Secured Party may at its option exercise from time to Lessor time any and all rights and remedies available to it under the Uniform Commercial Code or otherwise, including the right to assemble, receipt for, adjust, modify, repair, refurnish or refurbish (but without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value any obligation to do so) or foreclose or otherwise realize upon any of the Equipment (calculated as Collateral and to dispose of any of the rent payment date Collateral at one or more public or private sales or other proceedings. The Debtor agrees that the Secured Party or its nominee may become the purchaser at any such sale or sales. The Debtor further agrees that ten (10) days shall be reasonable prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all notice of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units date of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private public sale or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place other disposition of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or any part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any Collateral, or all of the purposes stated above without liability for rent, costs, damages date on or otherwise. The proceeds of sale, lease after which any private sale or other disposition, if any, shall disposition of the same may be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovemade.
(c) The foregoing remedies are cumulativeexercise by the Secured Party of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, and the Secured Party may proceed against the Debtor and the Collateral and any other collateral granted by the Debtor to the Secured Party under any other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or bar on any future occasion. All property of any kind held at any time by the Secured Party as Collateral shall stand as one general continuing collateral security for all thereof the Liabilities and may be exercised instead retained by the Secured Party as security until all the Liabilities are fully satisfied. The Debtor shall pay to the Secured Party on demand any and all expenses (including reasonably attorneys' fees and legal expenses) which may have been incurred by the Secured Party with interest at the Prevailing Interest Rate (i) in the prosecution or defense of any action growing out of or in addition to each other connected with the subject matter of this Agreement, the Liabilities, the Collateral or any remedies of the Secured Party's rights therein or thereto; or (ii) in connection with the custody, preservation, use, operation, preparation for sale or sale of any of the Collateral, the incurring of all of which are hereby authorized to the extent the Secured Party deems the same advisable. The Debtor's liability to the Secured Party for any such payment with interest shall be included in the Liabilities. The Proceeds of any Collateral received by the Secured Party at lawany time before or after default, in equity, or under statute. Lessee waives notice of whether from a sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense Collateral or preservation of Lessor's rights and remedies under this Agreementotherwise, or if prohibited by lawthe Collateral itself, such lesser sum as may be permittedapplied to the payment in full or in part of such of the Liabilities and in such order and manner as the Secured Party may elect. Waiver The Debtor to the extent of its rights in the Collateral waives and releases any default shall not be a waiver right to require the Secured Party to collect any of the Liabilities from any other or subsequent default.
(d) Any default under of the terms of this Collateral or any other agreement between Lessor and Lessee may be declared collateral then held by Lessor a default the Secured Party under this and any such other agreementtheory of marshalling of assets or otherwise.
Appears in 2 contracts
Samples: Credit Agreement (Jevic Transportation Inc), Security Agreement (Jevic Transportation Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: Each of the occurrence of (i) Lessee breaches its obligation a default, event of default, or other event on the basis of which a Party has the contractual right to pay rent accelerate, terminate, or liquidate all Transactions under any other sum when due and fails to cure of the breach within ten (10) days; Underlying Master Agreements, or (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made or repeated by Lessee in connection with this Agreement shall be false a Party hereunder proves to have been incorrect or misleading in any material respect; (v) Lessee respect when made or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyrepeated, or (Ciii) payments due under the lease agreement; (x) there a Party is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringviolation of, or fails to comply with, any other stock offeringcovenant made hereunder, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is constitutes a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor"Default" under this Agreement.
(b) After a default, at Upon the request of Lessor, Lessee shall comply with occurrence and during the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss continuance of a bargain Default in respect of any Defaulting Party, Non-defaulting Group may give notice to Defaulting Group specifying the relevant Default, declaring Defaulting Group in default of all Underlying Master Agreements and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default)all Transactions thereunder, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of designating a date not earlier than the Equipment. A termination shall occur only upon written date such notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor mayis effective, but not later than 20 days after such notice is effective, upon which date each Non-defaulting Party shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costsaccelerate, charges terminate, and expenses incurred in takingliquidate, removing, holding, repairing and selling, leasing or otherwise disposing close-out all Transactions under its Underlying Master Agreements as of Equipmentsuch designated date; then (ii) to exercise rights of setoff, netting, and/or recoupment in accordance with the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreementterms of its Underlying Master Agreements; then (iii) exercise rights to reimburse apply Collateral pursuant to Lessee any sums previously paid by Lessee all rights granted, and as liquidated damagesspecified in, its Underlying Master Agreements; and then (iv) retain any Collateral; (v) with respect to Lesseeeach Defaulting Party, if there exists withhold payment and performance of each Non-defaulting Party's Obligations to each Defaulting Party to pay, secure, setoff against, net, and/or recoup such Defaulting Party's Obligations to such Non-defaulting Party; (vi) convert any surplus. Lessee shall immediately pay any deficiency Obligation from one currency into another currency as set forth in (i) Section 5; and (iivii) abovetake any other action permitted by law or in equity or by its Underlying Master Agreements or any Transactions thereunder necessary or appropriate to protect, preserve, or enforce its rights or to reduce any risk of loss or delay. This Section 2(b) shall be referred to herein as the "Underlying Master Agreements Close-Out."
(c) The foregoing remedies are cumulativeAny and all notification requirements under the Underlying Master Agreements for accelerating, and any or all thereof may be exercised instead of or in addition to each other or any remedies at lawterminating, in equityliquidating, or under statuteotherwise closing-out Transactions thereunder shall be superceded by Section 2(b) and shall be satisfied in all respects by the notice provided for in Section 2(b) and, with particularity, any automatic termination provided for in any Underlying Master Agreement shall be inapplicable thereto. Lessee waives notice of sale or other disposition (If a Default occurs and if Non-defaulting Group does not elect to cause the time and place thereof)Underlying Master Agreements Close-Out, and the manner and place of any advertising. Lessee each Party shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's retain its rights and remedies obligations under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaulteach Underlying Master Agreement with respect thereto.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Master Setoff and Security Agreement, Master Setoff and Security Agreement
Default and Remedies. 17.1 You will be in default if any one or more of the following events occur:
(a) Lessor may You fail to deliver any of the StockCo Livestock in writing declare accordance with this Agreement Agreement;
(b) You do not pay all payments due to us on time and in default if: accordance with this Agreement;
(ic) Lessee breaches its obligation to pay rent You or any other sum when due and fails Guarantor becomes insolvent or bankrupt or enters into receivership, liquidation, external administration or becomes subject to cure any scheme of arrangement or composition of creditors;
(d) You cease to carry on farming the breach within ten Land or a substantial portion of it, on which the StockCo Livestock are being grazed unless you have first obtained our written consent to move the StockCo Livestock;
(10e) days; (ii) Lessee breaches You attempt to sell, dispose, sublease, encumber, create any security interest or otherwise deal with any of its insurance obligations under Section 9; the StockCo Livestock except in accordance with this Agreement;
(iiif) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any a representation or warranty made or repeated by Lessee you in connection with this Agreement shall be false is incorrect or misleading in a material way which in our opinion materially changes your ability to perform your obligations under this Agreement in an adverse way;
(g) You breach any material respect; of the covenants contained in clause 10;
(h) You part with possession of any of the StockCo Livestock except pursuant to this Agreement;
(i) You dispose of a substantial portion of the Land without giving to us at least 21 days prior written notice and first obtaining our written consent to move any StockCo Livestock;
(j) Any execution or other similar proceedings are levied or issued against the Land;
(k) If any indebtedness or obligations of you or any Guarantor to us is not paid, met or satisfied when due or becomes due and payable prior to its specified maturity or we become entitled to declare any indebtedness of you or such Guarantor due or you or any Guarantor makes default under any charge or security in favour of us.
17.2 If you are in default of this Agreement then we may give you notice at any time to remedy the default within 14 days. We may give a shorter notice period or no notice if the default is not capable of being remedied or if in our opinion the StockCo Livestock and their value may be at risk, either through being relocated, fluctuations in market values or the manner in which they are being fed and developed.
17.3 Upon expiry of any notice given under clause 17.2, and failing your remedying such default to our satisfaction, then:
(a) we may do one or more of the following:
(i) require you to immediately deliver up the StockCo Livestock to us at the property or properties as nominated by us;
(ii) as of right and without prior notice to you, enter the Land or any other property where we believe the StockCo Livestock may be located and repossess, carry out a sale of or xxxxxxxxx the StockCo Livestock. We may, at our discretion, deal with the StockCo Livestock, any part of the StockCo Livestock, or any products derived from the StockCo Livestock that we repossess or take in any manner that we see fit including without limitation by re-leasing, selling, or otherwise dealing with all or part of them. You agree to co-operate fully with the identification, rounding up and removal of the StockCo Livestock as required. All costs of or arising from such removal are to be paid by you;
(iii) undertake any of your obligations under this Agreement including, without limitation, your obligations to farm the StockCo Livestock under clause 10;
(iv) register a caveat over any Real Property in accordance with clause 26.2;
(v) Lessee take action under any security or any guarantor or other obligor for guarantee which has been granted to us in respect of the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concernAgreement; or
(vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.terminate this Agreement and
(b) After a default, at We shall no longer be required to make any payments to you other than an amount equal to the request surplus (if any) of Lessor, Lessee shall comply with funds received by us upon the provisions sale of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take StockCo Livestock that we have taken possession of after deducting all amounts we are entitled to under clause 12.6, any costs we have incurred in repossessing the Equipment. Lessee shall immediately pay StockCo Livestock or other expenses we have reasonably incurred in exercising our rights under this clause 17 and any other amount we are entitled to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior or may become entitled to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate You must indemnify us for any costs, loss, expense or liability in exercising our rights under this Agreement as clause except to the extent that such costs, loss, expense or liability were caused by our negligence, wilful misconduct or fraud.
17.4 Without diminution of any or all of the Equipment. A termination shall occur only upon written notice remedies provided by Lessor virtue of clause 17.3, in the event that you have sold or disposed or otherwise parted with the possession of any of the StockCo Livestock, or you have been in breach of your obligations under clause 15 to Lessee and only as make a payment to us for a period of more than 14 days then we, at our option, may make a demand on you for payment of a sum equal to the units StockCo Payment in respect of Equipment specified in all Stock. For the purposes of calculating the StockCo Payment the relevant date will be the date on which we make a demand on you for payment.
17.5 Interest will accrue on any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present amount that becomes due under clause 17 calculated at the place Default Rate from the date the amount fell due and compounded on the first day of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.calendar month
Appears in 2 contracts
Samples: Master Livestock Agreement, Master Livestock Agreement
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent lease, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; or
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessordays.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right. power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on anyone occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS’ OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement (Sunesis Pharmaceuticals Inc), Master Security Agreement (Sunesis Pharmaceuticals Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days; or
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) If Debtor is in default under Section 7(a)(i) of this Agreement and such Default is not cured within 30 days, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After a default, at Secured Party shall have all of the request rights and remedies of Lessora Secured Party under the Uniform Commercial Code, Lessee and under any other applicable law. Without limiting the foregoing. Secured Party shall comply have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least ten (10) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all reasonable costs of repossession, storage, and disposition including without limitation reasonable attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or farther exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES ARISING OUT OF THE AGREEMENT THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 2 contracts
Samples: Master Security Agreement, Master Security Agreement (Aveo Pharmaceuticals Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default ifThe occurrence of one or more of the following events constitutes an “Event of Default by Lessee”: (i) if Lessee breaches its obligation fails to pay rent any rent, fee or any other sum when due and fails to cure the breach payable by Lessee, within ten five (105) daysbusiness days of Lessee’s receipt of Lessor’s written request for payment; (ii) Lessee breaches breach of any representation, warranty, or covenant set forth in this Agreement, (with the exception of its insurance obligations under Section 9; (iii) Lessee breaches any non-payment of its other obligations and fails to cure that breach rent, fee, or sum due by Lessee), which is not cured within thirty (30) days after of Lessee’s receipt of written notice from Lessor(such thirty [30] day cure period being subject to extension if the default cannot reasonably be cured within such thirty [30] day period provided that, in such event, Lessee shall commence any cure within the thirty [30] day period and thereafter continuously and diligently pursue and complete such cure); (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (viiiii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee under any section or chapter of the present or any Guarantor future federal bankruptcy code or under any bankruptcy similar law or insolvency laws statute of the United States or any state thereof (and in the event of an involuntary petitionwith respect to any petition filed against Lessee, the such petition is not dismisseddismissed within sixty (60) days after the filing thereof, or if Lessee is adjudged bankrupt, or insolvent, in a proceeding filed under any section, or chapter, under the present, or any future, bankruptcy code, or under any similar law or statute of the United States, or any statute thereof; (iv) if a receiver or custodian or trustee is appointed for Lessee, or for any assets of the Lessee, and such appointment is not vacated within forty-five sixty (4560) days of the filing datesuch appointment; (ixv) if the equipment of Lessee default under is found to be interfering with the communications equipment of any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, users at the request of LessorProperty, Lessee shall comply with the provisions of Section 9(a) pursuant to Paragraph 8, and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand interference is not timely corrected as liquidated damages provided for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iiivi) to reimburse to if Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lesseetransfers, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulativeassigns, or subleases this Agreement, expands its use of its Facility, or otherwise breaches Paragraph 18 of this Agreement, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and such act is not cured within the applicable time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies period required under this Agreement, following Lessor’s written notice, under this Agreement.
a. If there is an occurrence, with the passage of time or if prohibited the giving of notice, or both, that constitutes an Event of Default by Lessee, with respect to the provision of this Agreement, the Lessor shall give Lessee written notice of such default. In the event Lessee has failed to cure an event of default, as set forth in this paragraph, in addition to any other rights or remedies specifically provided to the Lessor herein, the Lessor shall have the right to terminate this Agreement, and further provided that such right of termination, shall be in addition to any other rights and remedies hereunder, at law, or in equity, including, without limitation, an action to recover lost rent (consisting of any past due rent; any rent due for the balance of any of this Agreement’s Term; recover any reasonable out-of-pocket expenses, including reasonable attorney’s fees incurred to recover possession of Lessee’s Premises; and to recover any and all sums of money and damage owing by Lessee to Lessor).
b. If any controversy arising under, or out of, or relating to, this Agreement, or any breach thereof, and if the controversy cannot be settled through mutual and satisfactory negotiations, by and between the Lessor and Lessee, then the Parties agree first, to try in good faith, to settle the dispute by mediation administered by the American Arbitration Association, hereinafter designated as “AAA,” under its Commercial Mediation Procedures. Should mediation efforts, by and between the Parties prove unsuccessful, then, in that event, the Parties shall resolve the matter through binding arbitration. The Parties agree and acknowledge that each Party will be responsible for the payment of one-half (½) of the fees, incurred during the binding arbitration process. If said breach or controversy is determined and settled by such lesser sum as mediation, administered by AAA, any award rendered thereunder, shall be final and binding upon all Parties, and judgment may be permitted. Waiver of entered thereon, in any default shall not be a waiver of any other or subsequent defaultcourt having jurisdiction over same.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Tower Site Lease Agreement, Tower Site Lease Agreement
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTOR") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; or
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.days
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action,
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereofcosts incurred by Secured Part), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred ' in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default Debtor further agrees that such fees and costs shall not be a waiver of any other or subsequent defaultconstitute Indebtedness.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Master Security Agreement (Cytokinetics Inc), Master Security Agreement (Cytokinetics Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in The following events shall constitute events of default if: (hereafter “Events of Default”):
(i) Lessee breaches its obligation if the Buyer shall fail to pay rent or make any other sum payment when due hereunder; or
(ii) if either party shall default in the performance of this Agreement and fails such default shall continue for five (5) Business Days after written notice of default to the defaulting party and is not thereafter waived; provided that no Event of Default shall be deemed to have occurred under this sub-section if the relevant party is using diligent efforts to cure the breach default as soon as may be practicable (but, in any case, within ten fourteen (1014) daysdays after notice from the other party); (ii) Lessee breaches any of its insurance obligations under Section 9; or
(iii) Lessee breaches if the Seller or the Buyer shall file a voluntary petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment, liquidation or similar relief for itself under any present statute, law or regulation or any future statute, law or regulation adopted on or prior to the Delivery Date, or shall seek or consent to, or acquiesce in, the appointment of any trustee, or shall make any general assignment for the benefit of creditors, or shall admit in writing its other obligations and fails inability to cure that breach within thirty (30) days after written notice from Lessorpay its debts generally as they become due; or
(iv) any representation or warranty made by Lessee in connection with this Agreement if a petition shall be false filed against the Seller or misleading in the Buyer seeking any material respect; (v) Lessee reorganization, composition, readjustment, liquidation or similar relief under any present statute, law or regulation or any guarantor future statute, law or other obligor for regulation adopted on or prior to the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent Delivery Date or ceases to do business as a going concern; (vi) if any Equipment trustee, receiver or liquidator of either party is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorappointed.
(b) After a defaultUpon the occurrence of an Event of Default by one party under this Agreement, at the request other party shall be entitled, by notice in writing to the other, to terminate this Agreement and/or recover such damages and/or remedies as are available to it under applicable Law, and, in addition to such remedies of LessorSeller, Lessee shall comply with upon the provisions occurrence of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession an Event of the Equipment. Lessee shall immediately pay to Lessor without further demand Default by Buyer, Seller shall, as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior retain any Deposit paid to the declaration of default), Seller and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any Buyer shall have no further right or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveinterest therein.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Aircraft Parts Sale Agreement (Kitty Hawk Inc), Airframe Sale Agreement (Kitty Hawk Inc)
Default and Remedies. (a) Lessor may The occurrence and continuance of any “Event of Default” (as defined in the Credit Agreement) beyond all applicable cure periods and which has not been waived in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure by the breach within ten (10) days; (ii) Lessee breaches any Agent shall constitute an “Event of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorDefault” hereunder.
(b) After a default, at Upon the request of Lessor, Lessee shall comply with the provisions of Section 9(a) occurrence and the following provisions continuation of any Event of Default beyond all applicable cure periods and which has not been waived in writing by the Agent, the Agent shall apply also. Lessee hereby authorizes Lessor have, in addition to peacefully enter all other rights provided herein or in any premises where any Equipment may be other Loan Document or by law, the rights and take possession remedies of a Agent under the UCC (regardless of whether the UCC is the law of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss jurisdiction where the rights or remedies are asserted and regardless of a bargain and not as a penalty, whether the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior UCC applies to the declaration of defaultaffected Pledged Collateral), and all rents further the Agent may:
(i) settle, compromise, or release, on terms acceptable to the Agent, in whole or in part, any amounts owing on the Pledged Collateral, and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to extend the time of payment, in the Agent’s name or in the name of any or all Pledgor, in respect thereof;
(ii) apply to the payment of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to Secured Obligations, or collect the units Pledged Collateral, notwithstanding any forfeiture of Equipment specified interest or loss of other rights of any Pledgor against any obligor on its Pledged Collateral resulting from such action; and
(iii) sell or otherwise dispose of all or any part of the Pledged Collateral in any such notice. Lessor mayaccordance with applicable law, but shall not be required to, sell Equipment either at public or private or public sale, on any broker’s board or securities exchange, in bulk lots or in parcelsbulk, for cash, on credit, or otherwise, with or without noticerepresentations or warranties, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) upon such terms as are acceptable to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveAgent.
(c) The foregoing remedies are cumulativenet cash proceeds resulting from the collection, and any or all thereof may be exercised instead of or in addition to each other or any remedies at lawliquidation, in equity, or under statute. Lessee waives notice of sale or other disposition (and of the time and place thereof), and Pledged collateral will be applied as set forth in Section 9.03(b) of the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Credit Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default If by reason of any prohibition contained in applicable federal securities laws, Wisconsin securities laws or other state securities laws, as now or hereafter in effect, or in any rules or regulations pertaining to any of the foregoing laws, the Agent believes in its sole judgment that it is compelled to resort to one or more private sales of shares of stock constituting Pledged Collateral to a single purchaser or a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, each Pledgor acknowledges and agrees that private sales of such Pledged Collateral may be held notwithstanding that such sales may be at prices and on other terms less favorable to the applicable Pledgor than if such Pledged Collateral were sold at public sale. Each Pledgor further agrees that the Agent has no obligation to delay the sale of any such Pledged Collateral for the period of time necessary to permit registration of such Pledged Collateral, even if the issuer thereof would, or should, agree to register such Pledged Collateral for public sale under applicable securities laws. Each Pledgor specifically agrees that private sales made under the terms foregoing circumstances shall be deemed to have been made in a “commercially reasonable” manner.
(e) Under this Section 8, the Agent is not under any duty or obligation whatsoever to collect any dividends, interest, profits, or other payments due or accruing in respect of this the Pledged Collateral or to take any other agreement between Lessor action to preserve rights in connection with any Pledged Collateral, including without limitation, making or giving any presentment, demands for performance, notices of non-performance, protests, notices of protest, or notices of dishonor in connection with any Pledged Collateral.
(f) The Agent may deliver any Pledgor’s Pledged Collateral to such Pledgor at any time and Lessee may the receipt thereof by such Pledgor will be declared by Lessor a default under this complete and full acquittance in respect of such Pledged Collateral so delivered, and the Agent will thereafter be discharged from any such other agreementliability or responsibility therefor.
Appears in 2 contracts
Samples: Pledge Agreement (Twin Disc Inc), Pledge Agreement (Twin Disc Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in It shall be deemed a default if: hereunder if any of the following shall occur:
(i) Lessee breaches its obligation Tenant shall fail, for any reason, to pay rent or make any other sum payment of Rent as and when the same is due to be paid hereunder and fails to cure the breach within ten such default shall continue for five (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (305) days after written notice from Lessor; is given to Tenant;
(ii) Tenant shall fail, for any reason, to perform any other covenant, condition, agreement or other obligation on the part of Tenant to be observed or performed pursuant to this Lease (other than the payment of any Rent) or any other agreement between the parties, whether or not related to the Premises (except for such events described in subsections 16.1(a)(iii) through 16.1(a)(viii) for which no cure period is available), and such default shall continue for fifteen (15) days after written notice thereof or such shorter period as expressly provided herein or, provided such default can be cured and Tenant is acting diligently, continuously and in good faith, such longer period as may be reasonably required to complete the remedying of such default;
(iii) Tenant shall make or purport to make a Transfer affecting the Premises, or the Premises shall be used by any Person or for any purpose, other than in compliance with and as expressly authorized by this Lease;
(iv) Tenant or any representation other occupant of the Premises makes an assignment for the benefit of creditors or warranty becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors, or makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation), or steps are taken or action or proceedings commenced by Lessee in connection with this Agreement any Person for the dissolution, winding up or other termination of Tenant’s existence or for the liquidation of Tenant’s assets (provided the foregoing shall not be false considered a default hereunder if such steps or misleading in any material respect; action or proceedings are the subject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof);
(v) Lessee a trustee, receiver, receiver-manager, manager, agent or other like Person shall be appointed in respect of the assets or business of Tenant or any guarantor or other obligor for occupant of the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; Premises;
(vi) Tenant attempts to or does abandon the Premises or remove or dispose of any Equipment is illegally used; goods and chattels from the Premises;
(vii) if Lessee a writ of execution has been filed against Tenant or this Lease or any Guarantor goods or other property of Tenant shall at any time be seized or taken in execution or attachment and such writ or seizure or taking remains unsatisfied for a period of five (5) days or more (provided that the foregoing shall not be considered a default hereunder if such writ or seizure or taking is the subject of a natural person, any death or incompetency of Lessee or bona fide dispute between Tenant and such Guarantor; Person and Tenant delivers to Landlord satisfactory evidence thereof);
(viii) there is a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) agreement relating to the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorPremises.
(b) After a defaultIf there is an event of default then, without prejudice to and in addition to any other rights and remedies to which Landlord is entitled pursuant hereto or at law, the request of Lessor, Lessee shall comply with the provisions of Section 9(a) then current and the next three (3) months’ Rent shall be forthwith due and payable and Landlord shall have the following provisions shall apply also. Lessee hereby authorizes Lessor rights and remedies, all of which are cumulative and not alternative:
(i) to peacefully enter any premises where any Equipment may be and take possession terminate this Lease in respect of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value whole or any part of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon Premises by written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but Tenant (it being understood that actual possession shall not be required toto effect a termination of this Lease and that written notice alone shall be sufficient), sell Equipment at private or public saleit being understood and agreed that, if this Lease is terminated in bulk or in parcels, with or without notice, and without having the Equipment present at the place respect of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises Premises, this Lease shall thereupon be deemed amended as necessary to give effect thereto without need for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then further amendment;
(ii) to enter the extent not previously paid by LesseePremises as agent of Tenant and as such agent to relet them for whatever term (which may be for a term extending beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefor and, as the agent of Tenant, to pay Lessor take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same at the expense and risk of Tenant or to sell or otherwise dispose of the same at public or private sale without further notice, and to make such alterations to the Premises in order to facilitate their re-letting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the re-letting of the Premises, less all sums expenses incurred by Landlord in making the Premises ready for re-letting and in re-letting the Premises, on account of the Rent due from Lessee and to become due under this AgreementLease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; then no such entry or taking possession of or performing alterations to or re-letting of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
(iii) to reimburse remedy or attempt to Lessee remedy any sums previously default of Tenant in performing any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant therefor and without any liability for any damages resulting thereby, and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord’s covenants hereunder and without thereby being deemed to infringe upon any of Tenant’s rights pursuant hereto, and, in such case, Tenant shall pay to Landlord forthwith upon demand all amounts paid by Lessee as liquidated damages; Landlord to third parties in respect of such default and then all reasonable costs of Landlord in remedying or attempting to remedy any such default plus fifteen percent (15%) of the amount of such costs for Landlord’s inspection, supervision, overhead and profit;
(iv) to Lesseeobtain damages from Tenant including, without limitation, if there exists any surplus. Lessee this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time, it being agreed that Landlord shall immediately pay any deficiency in (i) and (ii) above.have no obligation to mitigate its damages whether or not this Lease is terminated; and
(cv) The foregoing remedies are cumulative, and any or all thereof may be exercised instead if this Lease is terminated due to the default of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this AgreementTenant, or if prohibited it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant (collectively “Disclaimer”), to obtain payment from Tenant of the value of all tenant inducements which were received by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other agreement between Lessor work for Tenant’s benefit completed at Landlord’s cost and Lessee may moving allowance, which value shall be declared multiplied by Lessor a default under fraction, the numerator of which shall be the number of months from the date of Disclaimer to the date which would have been the natural expiry of this Lease but for such Disclaimer, and any such other agreementthe denominator of which shall be the total number of months of the Term as originally agreed upon.
Appears in 2 contracts
Samples: Multi Tenant Industrial Lease (PointClickCare Corp.), Multi Tenant Industrial Lease (PointClickCare Corp.)
Default and Remedies. 4.1 If one or more of the following events ("Defaults") occurs and is not timely cured, then, the Unit of Local Government may declare Company in default under this Agreement and seek any of the enumerated remedies described in this Section.
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and Company fails to cure observe or perform any covenant or agreement contained in this Agreement, including the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) Exhibits hereto, for 10 days after written notice from Lessor; to cure thereof has been given to Company by the Unit of Local Government;
(ivb) any representation Any representation, warranty, certificate or warranty statement made by Lessee Company in connection with this Agreement, including the Exhibits hereto, or in any certificate, report, financial statement or other document delivered pursuant to this Agreement shall be false or misleading prove to have been incorrect when made in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.;
(c) The foregoing remedies are cumulativeCompany shall commence a voluntary case or other proceeding seeking liquidation, and reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or all thereof may be exercised instead other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in addition to each an involuntary case or other or any remedies at law, in equityproceeding commenced against it, or under statute. Lessee waives notice shall make a general assignment for the benefit of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreementcreditors, or if prohibited by lawshall fail generally to pay its debts as they become due, such lesser sum as may be permitted. Waiver or shall take any corporate action to authorize any of any default shall not be a waiver of any other or subsequent default.the foregoing;
(d) Any default An involuntary case or other proceeding shall be commenced against Company seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceedings shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against Company under the federal bankruptcy laws as now or hereafter in effect;
(e) Company ceases the conduct of active trade or business in the Unit of Local Government's community for any reason, including, but not limited to, fire or other casualty;
4.2 If a Default occurs and is not timely cured, then the Unit of Local Government shall seek reimbursement from the Company for all funds (including DCEO funds) expended by the Unit of Local Government on or related to the Project, including, but not limited to architectural engineering, construction, administrative, real estate and incidental costs related thereto.
4.3 Upon notice of a Default and if said Default is not timely cured, the Unit of Local Government shall notify the Company that reimbursement shall be made to the Unit of Local Government within 30 days after said notice. If the Company fails to reimburse the Unit of Local Government within 30 days after the date of the notice, the Unit of Local Government shall have the right to collect interest on the unpaid balance beginning on the 31st day after notice at a rate equal to 12% per annum.
4.4 If the Unit of Local Government is successful in any proceeding to enforce the terms of this or any other agreement between Lessor Agreement, then the Unit of Local Government shall have the right to obtain from the Company, as an additional remedy, attorney fees, costs and Lessee may be declared by Lessor a default under this and any such other agreementexpenses, related to the proceeding.
Appears in 2 contracts
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: If any of the following events or conditions (each an "Event of Default") shall occur and be continuing:
(i) Lessee breaches its obligation the Borrower shall fail to pay rent the Principal Sum when and as the same shall become due and payable, whether at its stated maturity, by acceleration or otherwise;
(ii) the Borrower shall fail to pay any Interest when and as the same shall become due and payable, whether at its stated maturity, by acceleration or otherwise;
(iii) the Borrower fails to grant and deliver the Warrant in accordance with the terms of the Note and Warrant Purchase Agreement;
(iv) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of the Borrower, or of a substantial part of the property or assets of the Borrower, under Title 11 of the United States Code, as now constituted or hereafter amended, or any successor to or replacement of such statute, or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation Federal or warranty made by Lessee in connection with this Agreement shall be false state bankruptcy, insolvency, receivership or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed moneysimilar law, (B) the deferred purchase price appointment of propertya receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of the properties or assets of the Borrower or (C) payments due the winding-up, liquidation or dissolution of the Borrower; and such proceeding or petition shall continue undismissed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(v) the Borrower (A) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the lease agreement; (x) there is any dissolutionUnited States Code, termination as now constituted or existencehereafter amended, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not successor to include an initial public offeringor replacement of such statute, or any other stock offeringFederal or state bankruptcy, preferred insolvency, receivership or similar law, (B) consents to, or fails to commoncontest in a timely and appropriate manner, the commencement against of any proceeding or the filing of any petition described in which clause (v) above, (C) applies for or consents to the primary purpose is appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of the properties or assets of the Borrower, (D) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) makes a general assignment for the benefit of creditors, (F) becomes unable, admits in writing its inability or fails generally to raise cash equity; pay its debts as they become due or (xiG) there is a material adverse change takes any action for the purpose of effecting any of the foregoing; then, (x) in the Lessee's financial condition. The default declaration case of an Event of Default specified in clause (a)(i), (ii), or (iii) above, the Lender may, at any time during the continuance of such Event of Default, by written notice to the Borrower, declare the entire outstanding Principal Sum, together with all accrued and unpaid Interest, to be due and payable and (y) in the case of an Event of Default specified in clauses (a)(iv) or (v) above, the entire outstanding Principal Sum, together with all accrued and unpaid Interest, shall apply to automatically forthwith become due and payable without presentment, protest or notice of any kind, all Schedules unless specifically excepted of which are hereby expressly waived by Lessorthe Borrower.
(b) After a defaultSubject to the other terms of this Note, at if an Event of Default occurs and is continuing, the request of Lessor, Lessee shall comply with Lender may pursue any available remedy to collect the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession payment of the EquipmentPrincipal Sum or Interest or to enforce the performance of any provision of this Note. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss If an Event of a bargain Default occurs and not as a penaltyis continuing, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior Lender may proceed to the declaration of default), protect and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to enforce its rights by any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies action at law, suit in equity, or under statute. Lessee waives notice of sale equity or other disposition (and appropriate proceeding. In the time and place thereof), and the manner and place case of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this in the payment of the Principal Sum or Interest, the Borrower will pay to the Lender such further amount as shall be sufficient to cover the costs and any such other agreementexpenses of collection, including, without limitation, reasonable attorneys' fees, expenses and disbursements.
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Rg Global Lifestyles Inc), Note and Warrant Purchase Agreement (Rg Global Lifestyles Inc)
Default and Remedies. (a) Lessor Events of Default. We may in writing declare this Agreement you to be in default ifunder the Cardmember Agreement if any of the following events occur: (i) Lessee breaches its obligation to you do not pay rent or any other sum when due and fails to cure the breach Card Account Balance within ten (10) days21 calendar days after it is due; (ii) Lessee breaches any of its insurance obligations under Section 9required payment you make is rejected, not paid or cannot be processed, and you have otherwise failed to make the payment within 21 calendar days after it is due; (iii) Lessee breaches any you file or become the subject of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessora bankruptcy or insolvency proceeding; (iv) any representation you are unable or warranty made by Lessee in connection with this Agreement shall be false unwilling to repay your obligations, including upon death or misleading in any material respectlegally declared incapacity; (v) Lessee we determine that you made a false, incomplete or any guarantor misleading statement to us, or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases you tried to do business as a going concerndefraud us; (vi) any Equipment is illegally usedyou revoke your consent under the “Consent to Electronic Signatures, Communications, and Statements” agreement to receive Communications electronically; (vii) if Lessee you do not comply with, or default under, any term of the Cardmember Agreement or any Guarantor is a natural person, any death other agreement with us; or incompetency of Lessee or such Guarantor; (viii) we receive a petition garnishment, attachment or other levy upon your Deposit Account, or the Deposit Account is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under subject to any other material obligation for (A) borrowed money, (B) the deferred purchase price legal proceeding. Consequences of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change Default. If you are in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment we may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without noticefollowing actions, and any other actions we have a right to take under applicable law, against you in accordance with applicable law, without having the Equipment present at the place of sale. Lessor may alsonotifying you, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of prioritiesunless applicable law says that we must give you notice: (i) to pay all of Lessor's costs, charges close or suspend your Card(s) and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of EquipmentCard Account; then (ii) reduce your available credit; (iii) demand that you immediately pay the Card Account Balance; (iv) continue to charge you interest and fees as permitted by this Cardmember Agreement as long as your Card Account Balance remains outstanding; (v) declare you to be in default under any other agreement you have with us and exercise our remedies under that other agreement; (vi) exercise our rights with respect to the Deposit Account pursuant to the Security Agreement; (vii) file a lawsuit against you, or pursue another action that is not prohibited by law or the Smart Card Agreement. If we file a lawsuit, you agree to pay our court costs, expenses and attorney fees except to the extent applicable law does not previously paid by Lessee, allow us to pay Lessor all sums due collect these amounts from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveyou.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 2 contracts
Samples: Smart Card Agreement, Smart Card Agreement
Default and Remedies. (a) Lessor may in writing declare The occurrence of any one or more of the following events shall constitute an “Event of Default” under this Agreement in default if: and each of the other Debt Documents:
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; ;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does relocate, move, sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 5;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Obligations shall be false or misleading in any material respect; respect as of the date made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Obligations ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) Any Material Adverse Change has occurred, as determined solely by Secured Party;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the filing date; Obligations or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party;
(ixxv) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; or
(xxvi) there is At any dissolution, termination time during the term of this Agreement Debtor experiences a change of control such that any person or existence, merger, consolidation entity acquires either more than 50% of the voting stock of Debtor or change in controlling ownership all or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to commonsubstantially all of Debtor’s assets, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessoreither case, without Secured Party’s prior written consent.
(b) After a defaultUpon the occurrence and during the continuance of an Event of Default, Secured Party, at its option, may declare any or all of the request Obligations to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) Upon the occurrence and during the continuance of an Event of Default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee Collateral from the premises or store it on the premises (provided, however, that any such action by Secured Party shall immediately pay be carried out in a manner that complies with the provisions of any estoppel, consent or similar agreement between Secured Party and any third parties pertaining to Lessor without further demand as liquidated damages for loss the Collateral), (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of default)Obligations. If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee Collateral unusable at Debtor’s premises and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied in applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the following order Obligations; third, to discharge any other obligation or indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulativeDebtor agrees to pay all reasonable attorneys’ fees and other fees, costs and any or all thereof may be exercised instead expenses incurred by Secured Party (including, without limitation, the allocated cost of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in-house legal counsel) in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall be part of the Obligations.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE OBLIGATIONS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. FOR THE PURPOSE OF ANY ENFORCEMENT BY SECURED PARTY OF ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT IN THE UNITED STATES, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO ANY DEBT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, DEBTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTIONS. EACH DEBTOR (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND OTHER DOCUMENTS AND OTHER SERVICE OF PROCESS OF ANY KIND AND CONSENTS TO SUCH SERVICE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE UNITED STATES OF AMERICA WITH RESPECT TO OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH ANY DEBT DOCUMENT BY ANY MEANS PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, INCLUDING BY THE MAILING THEREOF (BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) TO THE ADDRESS OF THE DEBTOR SPECIFIED IN PREAMBLE HERETO (AND SHALL BE EFFECTIVE WHEN SUCH MAILING SHALL BE EFFECTIVE, AS PROVIDED THEREIN). EACH DEBTOR (AND, TO THE EXTENT SET FORTH IN ANY OTHER DEBT DOCUMENT, EACH OTHER PARTY) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. FOR THE PURPOSE OF ANY ENFORCEMENT BY SECURED PARTY OF ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, (i) IN THE UNITED KINGDOM DEBTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS AND HEREBY APPOINTS LAW DEBENTURE CORPORATE SERVICES LIMITED WHOSE ADDRESS IS XXXXX XXXXX, 000 XXXX XXXXXX, XXXXXX, XX0X 0XX AS ITS AGENT FOR SERVICE OF ANY LEGAL PROCEEDINGS IN THE ENGLISH COURTS AND (ii) IN GERMANY, DEBTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE GERMAN COURTS AND HEREBY APPOINTS XX. XXX XXXXXXXXXXX, XXXXXXX MASSENKEIL XXXXXX & PARTNER, XXXXXxXXXXxX 0, 00000 XXXXXXXX ITS AGENT FOR SERVICE OF ANY LEGAL PROCEEDINGS IN THE GERMAN COURTS. DEBTOR WILL MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN EACH OF ENGLAND AND GERMANY.
Appears in 2 contracts
Samples: Master Loan and Security Agreement, Master Loan and Security Agreement (Zogenix, Inc.)
Default and Remedies. Subsection
(a) Lessor may is hereby amended with the following:
(a) Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach Debt Documents within ten (10) days; days after the same becomes due and payable;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral, however Debtor will not be considered in default if it replaces equipment with a value up to $5,000 in any given year without the written consent of Secured Party;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect when made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise and the same shall remain unsatisfied, unvacated or unstayed pending appeal for a period of 60 days after the occurrence thereof, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party beyond the period of grace, if any, provided therein unless such default has been waived;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTOR") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) A receiver is appointed for all or of any Equipment is illegally used; (vii) if Lessee part of the property of Debtor or any Guarantor, or Debtor or any Guarantor is makes any assignment for the benefit of creditors;
(x) Debtor or any Guarantor files a natural personpetition under any bankruptcy, insolvency or similar law, or any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event is not dismissed within sixty (60) days;
(xi) Debtor's improper filing of an involuntary petition, amendment or termination statement relating to a filed financing statement describing the petition is not dismissed, within forty-five Collateral; or
(45xii) days of the filing date; (ix) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under any lease agreement after giving effect to any grace period.
(xiii) At any time during the lease agreement; term of this Agreement Debtor sells more than 50% of its interest in the company to another corporation or business or all or substantially all of its assets (xother than the sale by Debtor of Debtor's equity securities in a public offering or to venture capital or strategic investors) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or without Secured Party's prior written consent
(xixiv) there There is a material adverse change in the LesseeDebtor's financial condition. The default declaration ; provided, however, that for purposes of determining whether there shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a defaulthave been any such material adverse change, at the request of LessorSecured Party must have notified Debtor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession in writing, of the Equipment. Lessee shall immediately pay alleged material adverse change and given Debtor a reasonable opportunity to Lessor without further demand find a mutually agreeable and beneficial solution through discussions and re-negotiations with Secured Party so as liquidated damages for loss to avoid the trigger of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default)this Section 7, and all rents and other sums then due under this Agreement and all SchedulesDebtor must have refused to engage in discussions with Secured Party in good faith." TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE AGREEMENT. Lessor may terminate this Agreement as to any or all of the EquipmentEXCEPT AS EXPRESSLY AMENDED HEREBY, THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor mayIF THERE IS ANY CONFLICT BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveTHEN THIS AMENDMENT SHALL CONTROL.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Master Security Agreement (Anadys Pharmaceuticals Inc)
Default and Remedies. Subsection (aa)(iii) Lessor may in writing declare this Agreement in default ifis hereby amended and replaced with the following: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee “Debtor breaches any of its insurance obligations under Section 9; 4 and such breach could result in a reduction or termination of coverage in any material respect;” Subsection (iiia)(iv) Lessee is hereby amended and replaced with the following: “Debtor breaches any of its other material obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;” Subsection (iva)(v) any is hereby amended and replaced with the following: “Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect at the time made;” Subsection (va)(vii) Lessee or any guarantor or other obligor for is hereby deleted in its entirety and the Lessee's obligations hereunder remaining subsections are correctly renumbered. Subsection ("GUARANTOR"a)(v) becomes insolvent or ceases to do business as a going concern; (virenumbered) any Equipment is illegally used; (vii) if Lessee hereby amended and replaced with the following: “Debtor or any Guarantor is files a natural personpetition under any bankruptcy, insolvency or similar law, or any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismisseddismissed within sixty (60) days; or” Subsection (c) is hereby amended and replaced with the following: “After default, within forty-five (45) days Secured Party shall have all of the filing date; (ix) Lessee default rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other material obligation for applicable law. Without limiting the foregoing, Secured Party shall have the right to (Ai) borrowed moneywith or without legal process, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (ii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iii) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor’s premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages or otherwise. The proceeds Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertisingpublic sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least ten (10) days prior to such action.” TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE AGREEMENT. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcementEXCEPT AS EXPRESSLY AMENDED HEREBY, assertionTHE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultTHEN THIS AMENDMENT SHALL CONTROL.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Master Security Agreement (Adnexus Therapeutics, Inc.)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default if: and each of the other Debt Documents upon the occurrence and during the continuance of any of the following events or circumstances (each an “Event of Default”):
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten three (103) days; provided, that prior to the delivery of the Survey as contemplated in Section 3(h) above, Debtor shall have no right to cure any such breach;
(ii) Lessee Debtor, without the prior written consent of Secured Party, (A) attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral, except for any sale or disposition of inventory in the ordinary course of business, or the sale of equipment or other assets which are determined by the Debtor in good faith to be obsolete or no longer used or useful in Debtor’s business or (B) breaches any of its obligations under Sections 2(n), (o), (p), (q), (r) or (s) or 3(a), (h), (i) or (j) hereof;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty ten (3010) days after written notice from LessorSecured Party; provided, that prior to the delivery of the Survey as contemplated in Section 3(h) above, Debtor shall have no right to cure any such breach;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect when made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise and such attachment, seizure or levy is not removed in ten (10) days or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor, any material Subsidiary (including without limitation ATIII, LLC, a Delaware limited liability company), or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) If Debtor, any Equipment is illegally used; (vii) if Lessee Subsidiary, or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor, any Subsidiary or any Guarantor, or Debtor, any Subsidiary or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor, any Subsidiary or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor, any Subsidiary or any Guarantor and is not dismissed within sixty (60) days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) There is a material adverse change in the Debtor’s financial condition and operations as determined in the commercially reasonable judgment of Secured Party; provided, however, that such a change will not be deemed to have occurred solely because of the occurrence of any of the following individual events: (a) negative responses from regulatory agencies; (b) negative clinical trial results; (c) a low cash position; (d) fluctuations in revenues; or (e) continuing losses from operations; provided, further, however, that (I) the occurrence of any of (a), (b) or (c) may form the basis on which the Secured Party reasonably determines that a material adverse change has occurred if any such event occurs in combination with one or more of the others of (a), (b) and (c) and (II) the occurrence of any of (a), (b), and (c), may form the basis on which the Secured Party reasonably determines that a material adverse change has occurred if any such event occurs with other adverse changes in Debtor’s financial condition;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the Indebtedness or fails to observe or perform any covenant, condition or agreement to be performed under any bankruptcy guaranty or insolvency laws and in the event of an involuntary petition, the petition other related document to which it is not dismissed, within forty-five a party;
(45xv) days of the filing date; (ix) Lessee default Debtor defaults under any other material obligation in excess of $100,000 for (A) borrowed money, including without limitation the Subordinated Debt, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; ;
(xxvi) there is At any dissolution, termination or existence, merger, consolidation or time during the term of this Agreement Debtor experiences a change in controlling ownership control such that any person or Lessee entity acquires either more than 50% of the voting stock of Debtor or sells all or substantially all of its assets, in either case, without Secured Party’s prior written consent; or
(xvii) Debtor or any Guarantor, but not to include an initial public offering, Guarantor or other obligor for any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of Indebtedness sells, licenses, sublicenses, transfers, assigns, mortgages, pledges, leases, grants a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to security interest in or encumbers any or all of the EquipmentDebtor’s Intellectual Property now existing or hereafter acquired. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels“Intellectual Property” shall, with respect to Debtor or without noticeany Subsidiary, be defined as any and without having the Equipment present at the place all copyright, trademark, servicemark, patent, design right, software, license, trade secret and intangible rights of sale. Lessor may alsosuch entity, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid marketing rights granted by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulativesuch entity, and any or all thereof may be exercised instead of or in addition to each other or any remedies at lawapplications, in equityregistrations, or under statuteclaims, licenses, products, proceeds, awards, judgments, amendments, renewals, extensions, improvements, insurance claims related thereto. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms For purposes of this paragraph (xvii) only, licenses, sublicenses or any other agreement between Lessor marketing rights granted by the Debtor of its Intellectual Property pursuant to Section 2(m) shall be excluded from the definition of Intellectual Property. Debtor shall provide Secured Party with a listing of licenses, sublicenses and Lessee may be declared by Lessor a default under this and any such other agreementmarketing rights granted to third parties within ten (10) days of receipt of written request.
Appears in 1 contract
Samples: Master Security Agreement (GTC Biotherapeutics Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement Default: Either party will be in default if: hereunder if it:
(i) Lessee breaches its obligation Fails to pay rent make any payment specified hereunder when or before due and such failure continues for five (5) Business Days after the effective date of written notice;
(ii) Breaches any other sum when due covenant or undertaking contained in this Agreement and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that remedy such breach within thirty (30) days after written notice thereof from Lessor; the non-defaulting party describing the relevant circumstances alleged to constitute a breach hereunder (including the specific Section of this Agreement alleged to be breached), unless this Agreement specifically provides otherwise;
(iii) Is in default of any of the provisions of Addendum A or B and such failure continues for ten (10) Business Days after the effective date of written notice, which such notice shall contain all relevant circumstances of such default;
(iv) any representation or warranty made Submits Records to Company for services that have not been properly authorized by Lessee in connection with this Agreement shall be false or misleading in any material respect; End Users;
(v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases Submits Records to do business as a going concern; Company that Company believes, in is sole discretion COMPANY CONFIDENTIAL AND PROPRIETARY 9 Company Customer based upon its applicable LEC Agreements, generate excessive Customer Service;
(vi) Files, or there is filed against it, any Equipment voluntary or involuntary proceeding under the Bankruptcy Code, insolvency laws or any laws relating to relief of debtors, adjustment of indebtedness, reorganizations, compositions or extensions, makes an assignment for the benefit of creditors, dissolves, declares that it is illegally used; unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature or if a receiver, trustee or custodian is appointed over, or an execution, attachment or levy is made upon, all or any material part of the property of such party;
(vii) if Lessee or any Guarantor is a natural person, any death or incompetency Attempts to assign its rights and obligations under this Agreement without the prior written consent of Lessee or such GuarantorCompany as may be required by Section 15 of this Agreement; or
(viii) a petition is filed by or against Lessee or Fails to comply with any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change obligations set forth in controlling ownership or Lessee or any Guarantor, but not Exhibit “G” to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Enhanced Services Billing and Information Management Services Agreement
Default and Remedies. (a) The occurrences of any of the following events shall constitute an Event of Default under the Lease Documents, and shall permit Lessor may to exercise the remedies provided in writing declare this Agreement in default if: Section 16(b) below, including the termination of Lessee's right to possession of the Equipment or the Collateral:
(i) Lessee breaches its obligation to pay rent or any other sum The nonpayment when due and fails to cure the breach from Lessee of (A) any installment of Basic Rent within ten (10) days; days after the due date therefor as set forth in the related Lease Supplement or (B) any Supplemental Rent required hereunder to be paid by Lessee ten (10) days after receipt of written notice from Lessor or any Transferee of such nonpayment;
(ii) The failure by Lessee breaches to perform any other term, obligation, covenant or condition of its insurance obligations under Section 9; this Lease that is not cured within twenty (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (3020) days after written notice from Lessor; Lessor to Lessee of such failure;
(iii) Lessee shall be in default under the terms of any other written agreement with Lessor (or any Transferee) and Lessor (or such Transferee) shall have declared a default and/or begun to exercise remedies thereunder after the expiration or waiver of any applicable grace period;
(iv) The subjection of any part of the Collateral to any Lien other than a Permitted Lien;
(v) In the event that (A) Lessee shall (1) authorize or agree to the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, corporation, receivership or other similar Law now or hereafter in effect that authorizes the reorganization or liquidation of such party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, (2) make a general assignment for the benefit of its creditors, (3) fail generally or admit in writing its inability to pay its debts as they become due, (4) take any corporate action to authorize any of the foregoing or (5) have an involuntary or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period exceeding 60 days; or (B) an order for relief pursuant to such applicable debtor/creditor law shall have been entered against Lessee; and
(vi) If any representation or warranty made by the Lessee herein or in any other Lease Document, or made by the Lessee in any statement or certificate furnished by the Lessee in connection with the execution of this Agreement shall be false Master Lease or misleading any other Lease Document or the delivery of any items of Equipment hereunder or thereunder or furnished by the Lessee pursuant hereto or thereto, proves untrue in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business respect as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) date of the deferred purchase price of property, issuance or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessormaking thereof.
(b) After a defaultUpon the happening of any of the above Events of Default, at the request of Lessor, Lessor may declare this Master Lease to be in Default. Such declaration shall be by written notice to Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply alsoto all Leases, all Equipment leased hereunder and all Collateral. Lessee hereby authorizes Lessor at any time thereafter to peacefully enter with or without legal process any premises where any Equipment the Collateral may be and take possession of the Equipmentthereof. Lessee shall immediately shall, without further demand, forthwith pay to Lessor without further demand an amount that is equal to any unpaid Rent due on or before Lessor has declared this Lease to be in Default plus, as liquidated damages for loss of a bargain and not as a penalty, an amount equal to the Stipulated Loss Value of for the Equipment on the date the Lessor shall declare this Lease to be in Default (calculated in each case together with any Late Fee related thereto). After Default, as of the rent payment date prior and to the declaration extent requested by Lessor, Lessee shall comply with the provisions of default), and all rents and other sums then due under Section 17 of this Agreement and all SchedulesMaster Lease. Lessor may terminate this Agreement as shall be entitled to any or all of sell the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment Collateral at private or public salesale within or without the United States, in bulk or in parcels, with or without notice, and without having the Equipment Collateral present at the place of sale. , with the privilege of becoming the purchaser thereof; and Lessor may also, but shall not be required to, entitled to lease, otherwise dispose of or keep idle all or any part of the Equipment. Lessor may use Collateral after recovery of possession from Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i1) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipmentthe Collateral (including, without limitation, reasonable attorneys' fees, costs and disbursements); then then, (ii2) to the extent not previously paid by Lessee, to pay Lessor the Stipulated Loss Value for the Equipment and all other sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid then-payable by Lessee as liquidated damageshereunder, including any unpaid Rent; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.then,
Appears in 1 contract
Samples: Master Lease (Psinet Inc)
Default and Remedies. Lessee shall be deemed in default under this -------------------- Defeasance Deposit Agreement upon the occurrence and during the continuance of an Event of Default, as that term is defined in Appendix 1 to the Participation ------------------------------- Agreement. In addition to all other rights and remedies granted to Agent and --------- the Participants by this Defeasance Deposit Agreement, the Participation Agreement, the other Operative Documents, the UCC and other Applicable Laws, Agent and the Tranche A Participants may, upon the occurrence and during the continuance of any Event of Default, exercise any one or more of the following rights and remedies (to the extent allowed by Applicable Law):
(a) Lessor Agent may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent collect, receive, appropriate or any other sum when due and fails to cure realize upon the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation Collateral or warranty made by Lessee in connection with this Agreement shall be false otherwise foreclose or misleading enforce Agent's security interests in any material respector all Collateral in any manner permitted by Applicable Law or in this Defeasance Deposit Agreement; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.or
(b) After a default, at Agent may notify the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) Defeasance Deposit Depositary Bank to pay all or any portion of the Collateral held by the Defeasance Deposit Depositary Bank directly to Agent. Agent shall distribute the proceeds of all Collateral received by Agent after the occurrence of an Event of Default to Lessor's costs, charges the Tranche A Participants and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) Agent for application to the extent not previously Obligations owed to such Persons pursuant to the Participation Agreement and the Lease. If any proceeds of Collateral remain after all Obligations have been paid by Lesseein full, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse Agent and the Defeasance Deposit Depositary Bank shall deliver the same to Lessee or other Person entitled thereto. In any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives case where notice of any sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Collateral is required, Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense hereby agrees that seven (7) days notice of such sale or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultdisposition is reasonable.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 98; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; or (ix) Lessee default defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial conditionagreements. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also). Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment Equipment. (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.then
Appears in 1 contract
Samples: Master Lease Agreement (Cyberkinetics Neurotechnology Systems, Inc.)
Default and Remedies. An Event of Default shall be deemed to have occurred hereunder and FGI may immediately exercise its rights and remedies with respect to the Purchased Accounts and the Collateral under this Agreement, upon the happening of one or more of the following: (a) Lessor may in writing declare this Agreement in default if: Seller shall fail to pay as and when due any amount owed to FGI; (b)
(i) Lessee breaches its obligation the commencement of any action for the dissolution or liquidation of Seller, or the commencement of any proceeding to pay rent avoid any transaction entered into by Seller, or the commencement of any case or proceeding for reorganization or liquidation of Seller’s debts under the federal bankruptcy code or any other sum when due state or federal law, now or hereafter enacted for the relief of debtors, whether instituted by or against Seller; provided however, that Seller shall have thirty (30) days to obtain the dismissal or discharge of involuntary proceedings filed against it, it being understood that, notwithstanding the discretionary nature of the facility described herein, during such thirty (30) day period, FGI shall have no obligations to accept Seller’s offer to sell, assign, transfer, convey or deliver to FGI all of Seller’s right, title and fails interest in and to cure Seller’s Accounts or otherwise advance any funds hereunder, (ii) Seller makes or proposes in writing, an assignment for the breach benefit of creditors generally, offers a composition or extension to creditors, or makes or sends notice of an intended bulk sale of any business or assets now or hereafter owned or conducted by Seller, or (iii) the appointment of a receiver, liquidator, custodian, trustee or similar official or fiduciary for Seller or for Seller’s property; (c) Seller shall become insolvent in that its debts are greater than the fair value of its assets, or Seller is generally not paying its debts as they become due; (d) any involuntary lien, garnishment, attachment or the like shall be issued against or shall attach to the Purchased Accounts, the Collateral or any portion thereof and the same is not released within ten (10) days; (iie) Lessee breaches any Seller suffers the entry against it for a final judgment for the payment of its insurance obligations under Section 9; (iii) Lessee breaches any money in excess of its other obligations and fails to cure that breach $50,000, unless the same is discharged within thirty (30) days after written notice from Lessorthe date of entry thereof or an appeal or appropriate proceeding for review thereof is taken within such periods and a stay of execution pending such appeal is obtained; (ivf) Seller shall breach any covenant, warranty or representation set forth herein or same shall be untrue when made; (g) any representation report, certificate, schedule, financial statement, profit and loss statement or warranty made other statement furnished by Lessee in connection with this Agreement shall be false Seller, or misleading by any other person on behalf of Seller, to FGI is not true and correct in any material respect; (vh) Lessee Seller shall have a federal or state tax lien filed against any guarantor of its properties, or other obligor for the Lessee's obligations hereunder shall fail to pay any federal or state tax when due ("GUARANTOR") becomes insolvent including extensions), or ceases shall fail to do business file any federal or state tax form as a going concernand when due (including extensions); (vi) any Equipment is illegally used; (viii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due Seller otherwise defaults under the lease agreement; (x) there is terms of any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which such indebtedness if the primary purpose effect of such default is to raise cash equityenable the holder of such indebtedness to accelerate the payment of Sellers’ obligations, which are the subject thereof, prior to the maturity date or prior to the regularly scheduled date of payment; or (xij) there is a material adverse change shall have occurred in Seller’s financial conditions, business, operations or prospects (as determined by FGI in its commercially reasonable discretion). Upon the Lessee's financial condition. The default declaration occurrence of an Event of Default, all obligations owing to FGI (including the Obligations) shall apply to all Schedules unless specifically excepted by Lessor.
become immediately due and owing at the option of FGI (provided upon the occurrence of an Event of Default under clause (b) After above, all such amounts shall become immediately due and payable without further notice or demand) and FGI shall be entitled to any form of equitable relief that may be appropriate without having to establish any inadequate remedy at law or other grounds other than to establish that its Collateral is subject to being improperly used, moved, dissipated or withheld from FGI. FGI shall be entitled to freeze, debit and/or effect a defaultset-off against any fund or account Seller may maintain with any Bank. In the event FGI deems it necessary to seek equitable relief, at including, but not limited to, injunctive or receivership remedies, as a result of an Event of Default, Seller waives any requirement that FGI post or otherwise obtain or procure any bond. Alternatively, in the request of Lessorevent FGI, Lessee shall comply in its sole and exclusive discretion, desires to procure and post a bond, FGI may procure and file with the provisions court a bond in an amount up to and not greater than $10,000 notwithstanding any common or statutory law requirement to the contrary. Upon FGI’s posting of Section 9(a) and the following provisions such bond it shall apply alsobe entitled to all benefits as if such bond was posted in compliance with state law. Lessee hereby authorizes Lessor to peacefully enter Seller also waives any premises where any Equipment right it may be entitled to, including an award of attorney’s fees or costs, in the event any equitable relief sought by and take possession of the Equipment. Lessee shall immediately pay awarded to Lessor without further demand as liquidated damages FGI is thereafter, for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of defaultwhatever reason(s), and all rents and other sums then due under this Agreement and all Schedulesvacated, dissolved or reversed. Lessor may terminate this Agreement as to any All post-judgment interest shall bear interest at either the contract rate, 18% per annum or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum higher rate as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultallowed by law.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (MamaMancini's Holdings, Inc.)
Default and Remedies. (a) Lessor may in writing declare The occurrence of any of the following events shall be events of default hereunder: Seller shall fail to pay any indebtedness to WFBC when due or repurchase any Account when required hereunder; Seller shall breach any term, provision, promise, warranty, representation or covenant under this Agreement in default if: (i) Lessee breaches its Agreement, or under any other agreements, contracts, between Seller and WFBC or obligation to WFBC; the appointment of any receiver or trustee of all or a substantial portion of the assets of Seller; Seller shall become insolvent or unable to pay rent debts as they mature, shall make a general assignment for the benefit of creditors or shall voluntarily file a petition under the United States Bankruptcy Code or any other sum when due and fails to cure the breach within ten (10) dayssimilar law; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee involuntary petition in connection with this Agreement bankruptcy shall be filed against Seller and is not dismissed within 60 days or an order for relief is entered against Seller under the United States Bankruptcy Code; any levies, attachment, executions, tax assessments or similar process shall be issued against the Collateral; any financial statements, profit and loss statements, or schedules, other statements or documents furnished by Seller to WFBC are false or misleading incorrect in any material respect; (v) Lessee or any guarantor or other obligor documents submitted by Seller to WFBC for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event purchase of an involuntary petitionAccount are mistaken, the petition is not dismissedfraudulent, within forty-five (45) days of the filing date; (ix) Lessee default under incorrect and/or erroneous in any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyrespect, or (C) payments due under if the lease agreement; (x) there is Seller fails to submit any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted document required by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due WFBC under this Agreement for the purchase of that Account or if any guarantor withdraws a guaranty of this agreement. Upon the occurrence of an event of default, WFBC may declare immediately due and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without noticepayable, and to charge back, all indebtedness of Customer to WFBCI, including without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: limitation (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) outstanding purchased Accounts and (ii) above.
(c) The foregoing remedies are cumulativeall other fees, costs and expenses as required hereunder and exercise any or all thereof may be exercised instead of or in addition rights available to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (a secured creditor with respect to the Seller and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum Collateral (as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(ddefined below) Any default under the terms Uniform Commercial Code (the "UCC"). After the occurrence of this or an event of default, interest shall accrue on any other agreement between Lessor and Lessee may be declared by Lessor a unpaid balance due to WFBC at the default under this and any such other agreementrate of 18%.
Appears in 1 contract
Samples: Account Transfer Agreement (Cargo Connection Logistics Holding, Inc.)
Default and Remedies. It shall be an Event of Default under this Agreement if:
(a) Lessor may Borrower fails to make any payment required under this Agreement or any present or future supplements hereto or under any other agreement between Borrower and Lender when due, or if payable upon demand, upon demand; or
(b) Borrower fails to perform or observe any covenant, condition or agreement contained in this Agreement or in any other Loan Document; or
(c) Any warranty, representation or statement made or furnished to Lender by or on behalf of Borrower or any Guarantor proves to have been false, incorrect or misleading in a material respect when made; or
(d) A proceeding seeking an order for relief under the Bankruptcy Code is commenced by or against Borrower or any Guarantor, provided however, that if such a proceeding is commenced against Borrower or any Guarantor on an involuntary basis, then only if such action is not dismissed within 60 days of first being filed; or
(e) Borrower or any Guarantor becomes insolvent or generally fails to pay, or admit in writing declare this Agreement in default if: its or his inability to pay, its or his debts as they become due; or
(if) Lessee breaches its obligation to pay rent Borrower or any Guarantor applies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches custodian for it or him or for any of its insurance obligations under Section 9or his property, or makes a general assignment for the benefit of creditors; (iii) Lessee breaches any or, in the absence of its such application, consent or acquiescence, a trustee, receiver or other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation custodian is appointed for Borrower or warranty made by Lessee in connection with this Agreement shall be false for Guarantor or misleading in any material respect; (v) Lessee for a substantial part of Borrower's or any guarantor Guarantor's property; or
(g) Any other reorganization, debt arrangement, or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent case or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor proceeding under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertylaw, or (C) payments due under the lease agreement; (x) there any dissolution or liquidation proceeding is any dissolution, termination or existence, merger, consolidation or change commenced in controlling ownership or Lessee respect of Borrower or any Guarantor, but provided however, that if such a proceeding is commenced against any Guarantor on an involuntary basis, then only if such action is not dismissed within 60 days of first being filed; or
(h) Borrower or any Guarantor takes any action to include an initial public offeringauthorize, or in furtherance of, any of the events described in the foregoing clauses (d) through (g); or
(i) All or a substantial part of the assets of Borrower or any Guarantor are sold, leased, or otherwise disposed of (whether in one transaction or in a series of transactions) to one or more Persons;
(j) Any judgments, writs or warrants of attachment, executions or similar process (not covered by insurance) in the aggregate amount that exceeds $10,000.00 is issued or levied against Borrower, any Guarantor or any of its or his assets and is not released, vacated or fully bonded prior to any sale and in any event within five days after its issue or levy; or
(k) The issuance or levy of any garnishment, summons, writ of attachment, writ, warrant, attachment, tax lien or tax levy, execution or other process against any property of Borrower or any Guarantor; or
(l) The attachment of any tax lien to any property of Borrower or any Guarantor which is other than for taxes or assessments not yet due and payable; or
(m) Any Guarantor dies or attempts to revoke his or its guaranty; or
(n) A Material Adverse Occurrence takes place. Upon the occurrence of any Event of Default described in subparagraphs (d), (e), (f), (g) (h) or (i) above, all Obligations shall be and become immediately due and payable without any declaration, notice, presentment, protest, demand or dishonor of any kind (all of which are hereby waived by Borrower) and Borrower's ability to obtain any additional credit extensions or Advances under this Agreement shall be immediately and automatically terminated. Upon the occurrence of any other stock offeringEvent of Default, preferred Lender, without notice to commonBorrower, in which the primary purpose is may terminate Borrower's ability to raise cash equity; obtain any additional credit extensions or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due Advances under this Agreement and may declare all Schedulesor any portion of the Obligations to be due and payable, without notice, presentment, protest or demand or dishonor of any kind (all of which are hereby waived), whereupon the full unpaid amount of the obligations which shall be so declared due and payable shall be and become immediately due and payable. Lessor Upon the occurrence of an Event of Default, Lender shall have all the rights and remedies of a secured party under the Commercial Code and may terminate this Agreement as require Borrower to assemble the Collateral and make it available to Lender at a place designated by Lender, and Lender shall have the right to take immediate possession of the Collateral and may enter any of the premises of Borrower or wherever the Collateral is located with or without process of law and to keep and store the same on said premises until sold (and if said premises be the property of Borrower, Borrower agrees not to charge Lender or a purchaser from Lender for storage thereof for a period of at least 90 days). Upon the occurrence of an Event of Default, Lender, without further demand, at any time or times, may sell and deliver any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment Collateral at public or private or public sale, for cash, upon credit or otherwise, at such prices and upon such terms as Lender deems advisable, at its sole discretion. Any requirement under the Commercial Code or other applicable law of reasonable notice will be met if such notice is mailed to Borrower at its address set forth in bulk or in parcels, with or without notice, and without having the Equipment present opening paragraph of this Agreement at least ten days before the place date of sale. Lessor Lender may alsobe the purchaser at any such sale, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwiseif it is public. The proceeds of sale, lease or other disposition, if any, shall sale will be applied in the following order first to all expenses of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removingretaking, holding, repairing and sellingpreparing for sale, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (selling and the time like, including attorneys' fees and place thereof)legal expenses (whether or not suit is commenced) including, without limitation, reasonable attorneys' fees and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees legal expenses incurred in connection with any appeal of a lower court's order or judgment, and second to the enforcementpayment (in whatever order Lender elects) of all other obligations chargeable to Borrower's loan account hereunder. Subject to the provisions of the Commercial Code, assertion, defense or preservation Lender will return any excess to Borrower and Borrower shall remain liable to Lender for any deficiency. Borrower agrees to give Lender immediate notice of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver the existence of any default shall not be a waiver Default or Event of any other or subsequent defaultDefault.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: General Credit and Security Agreement (Productivity Technologies Corp /)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: If (i) Lessee breaches its obligation the County shall fail to pay rent or any other sum Base Rental Payment hereunder when the same becomes due and fails payable, time being expressly declared to cure be of the breach within ten (10) days; essence hereof, or (ii) Lessee breaches the County shall fail to keep, observe or perform any other term, covenant or condition contained herein required to be kept or performed by the County for a period of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; of the same has been given to the County by the Corporation to correct the same, or upon the happening of any of the events specified in subsection (ivb) of this section (any representation or warranty made by Lessee in connection with this Agreement such case above being an “Event of Default”), the County shall be false deemed to be in default hereunder and it shall be lawful for the Corporation to exercise any and all remedies available pursuant to law or misleading granted pursuant hereto, and upon any such default, the Corporation, in addition to all other rights and remedies it may have at law, shall have the option to do any of the following:
(1) To terminate the Facility Lease in the manner hereinafter provided on account of default by the County (if then permitted by law), notwithstanding any re-entry or re-letting of the Facilities as hereinafter provided for in subparagraph (2) hereof, and to re-enter the Facilities and remove all persons in possession thereof and all personal property whatsoever situated upon the Facilities and place such personal property in storage in any material respect; (v) Lessee or any guarantor warehouse or other obligor for suitable place located within the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in County. In the event of an involuntary petitionsuch termination, the petition is not dismissed, within forty-five (45) days County agrees to surrender immediately possession of the filing date; (ix) Lessee Facilities, without delay or hindrance, and to pay the Corporation all damages recoverable at law that the Corporation may incur by reason of default under by the County, including, without limitation, any other material obligation for (A) borrowed moneycosts, (B) the deferred purchase price of propertyloss or damage whatsoever arising out of, in connection with, or (C) payments due under incident to any such re-entry upon the lease agreement; (x) there is Facilities and removal and storage of such property by the Corporation or its duly authorized agents in accordance with the provisions herein contained. Notwithstanding anything contained herein, neither notice to pay rent or to deliver up possession of the Facilities given pursuant to law nor any dissolutionentry or re-entry by the Corporation nor any proceeding in unlawful detainer, or otherwise, brought by the Corporation for the purpose of effecting such re-entry or obtaining possession of the Facilities nor the appointment of a receiver upon initiative of the Corporation to protect the Corporation’s interest hereunder shall of itself operate to terminate the Facility Lease, and no termination hereof on account of default by the County shall be or existencebecome effective by operation of law or acts of the parties hereto, mergeror otherwise, consolidation unless and until the Corporation shall have given written notice to the County of the election on the part of the Corporation to terminate the Facility Lease, and the County covenants and agrees that no surrender of the Facilities or change in controlling ownership or Lessee of the remainder of the term hereof or any Guarantor, but not to include an initial public offering, termination hereof shall be valid in any manner or for any other stock offering, preferred to common, in which purpose whatsoever unless stated or accepted by the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted Corporation by Lessorsuch written notice.
(b2) After a defaultWithout terminating the Facility Lease, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges collect each Base Rental Payment as it becomes due and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of enforce any other terms or subsequent default.
(d) Any default under provisions hereof to be kept or performed by the terms County, regardless of this whether or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.not the County has abandoned the Facilities, or
Appears in 1 contract
Samples: Facility Lease
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum within 5 days of when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other non-payment obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any material warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; Master Security Agreement No. 4081067
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days;
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) Without the prior written consent of Secured Party, which consent shall not be unreasonably withheld, conditioned or delayed, Debtor shall merge with or consolidate into any other entity or sell all or substantially all of its assets or in any manner terminate its existence except where (i) Debtor is the surviving entity and no default has occurred and is continuing or would exist after giving effect to the transaction or (ii) Debtor is not the surviving entity, no default has occurred and is continuing or would exist after giving effect to the transaction, and the acquiring entity either assumes the Indebtedness or prepays the Indebtedness in full without penalty or premium within 10 days after the closing of the filing date; transaction;
(ixxiv) Lessee default Without the prior written consent of Secured Party, which consent shall not be unreasonably withheld, conditioned or delayed, if Debtor is a privately held corporation, less than 25% of Debtor's voting capital stock, or effective control of Debtor's voting capital stock, issued and outstanding from time to time, is retained by the holders of such stock on the date the Agreement is executed (other than due to the sale of Debtor's equity securities in a public offering nor to venture capital investors);
(xv) Debtor is a publicly held corporation, there shall be a change in the ownership of Debtor's stock such that Debtor is no longer subject to the reporting requirements of the Securities Exchange Act of 1934 or no longer has a class of equity securities registered under Section 12 of the Securities Act of 1933;
(xvi) Debtor defaults under any other material obligation for financing arrangement between Debtor and a third party; and
(Axvii) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) Secured Party shall have reasonably determined that there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is has been a material adverse change in the Lessee's financial condition. The default declaration condition or business operations of Debtor from the date hereof, or a change or event shall apply have occurred which would impair the ability of Debtor to all Schedules unless specifically excepted by Lessorperform its obligations hereunder.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law. Master Security Agreement No. 4081067
(c) If Debtor is in default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, if Debtor is in default, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store, it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the tight to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If Debtor is in default and if requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party, which is reasonably convenient to both parties. Lessor If Debtor is in default Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rentrent or costs. Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debt of at least ten (10) days prior to such action. Upon the occurrence and during the continuation of an Event of Default, costsDebtor hereby appoints Secured Party as Debtor's attorney-in-fact, damages with full authority in Debtor's place and stead and in Debtor's name or otherwise. The proceeds , from time to time in Secured Party's sole and arbitrary discretion, to take any action and to execute any instrument which Secured Party may deem necessary or advisable to accomplish, the purpose of sale, this Agreement.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default Debtor further agrees that such fees and costs shall not be a waiver of any other or subsequent defaultconstitute Indebtedness.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Master Security Agreement (Altus Pharmaceuticals Inc.)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person. Debtor or any such Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the property of Debtor or any Guarantor, or Debtor or any death Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or incompetency of Lessee any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days; or
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute indebtedness.
(f) Secured Party's rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS. AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 1 contract
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents (other than the Warrant and the Confidential Disclosure Agreement) if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten (10) days; (provided that such delay is not caused by Lender’s failure to automatically debit such payment from immediately available funds of Debtor pursuant to the authorization provided by Debtor to Lender);
(ii) Lessee Debtor, without the prior written consent of Lender, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens and transfers of inventory in the ordinary course of business) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 5;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Lender;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Lender subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Lender;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) There is a material adverse change in Debtor’s financial condition as determined solely by Lender acting in good faith;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the filing date; Indebtedness or fails to observe or perform any covenant, condition or agreement to be performed under any guaranty or other related document to which it is a party;
(ixxv) Lessee default Debtor defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; ;
(xxvi) there is At any dissolutiontime during the term of this Agreement, termination without Lender’s prior written consent, (A) Debtor sells all or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; substantially all of its assets or (xiB) there is a material adverse change in the Lessee's financial conditioncomposition of Debtor’s stockholders as of the date of this Agreement occurs resulting in a stockholder or investor group acquiring more than 50% of any class of Debtor’s equity securities; or
(xvii) Except for Permitted Liens or as otherwise permitted herein, Debtor sells, transfers, assigns, mortgages, pledges, leases, grants a security interest in or encumbers all of Debtor’s Intellectual Property now existing or hereafter acquired in violation of the Negative Pledge. The default declaration For purposes of this paragraph xvii, licenses or sublicenses by Debtor of its Intellectual Property as part of a research and development or similar arrangement shall apply be excluded. Debtor shall provide Lender with a listing of licenses and sublicenses granted to all Schedules unless specifically excepted by Lessorthird parties within ten (10) days of receipt of reasonable written request for such information.
(b) If Debtor is in default, the Lender, at its option, may declare any or all of the Indebtedness to be immediately due and payable, by notice to Debtor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After the occurrence of a default, at described in this Section 8, Lender shall have all of the request rights and remedies of Lessora Lender under the Uniform Commercial Code, Lessee and under any other applicable law. Without limiting the foregoing, after default Lender shall comply have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Lender, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Lender, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties. Lessor Lender may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee Collateral unusable at Debtor’s premises and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Lender is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsLender, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Lender in connection with the enforcement, assertion, defense or preservation of Lessor's Lender’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Lender’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Lender to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 1 contract
Samples: Loan and Master Security Agreement (Cyberkinetics Neurotechnology Systems, Inc.)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days; or
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default Debtor further agrees that such fees and costs shall not be a waiver of any other or subsequent defaultconstitute Indebtedness.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. 8.1 The occurrence of any of the following events or conditions (aherein "Events of Default") Lessor may shall, at the option of Pledgee and without notice to or demand on Pledgor, constitute an Event of Default hereunder:
8.1.1 any Event of Default under and as defined in writing declare this either Loan Agreement, shall have occurred and be continuing;
8.1.2 breach, violation or non- performance of any warranty, covenant, agreement or undertaking on Pledgor's part hereunder, under the Loan Agreement in default if: or under the Guaranty. Any Event of Default that shall have occurred hereunder or under the Loan Agreement at any time shall be deemed continuing unless such Event of Default is (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure cured, provided that an Event of Default may only be cured within the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within fortytime-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee frame and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default so expressly permitted under the terms of this Agreement or the Loan Agreement, as applicable or (ii) waived in writing by Pledgee.
8.2 Upon the occurrence of any Event of Default, Pledgee may, at its option, without notice to or demand on Pledgor, declare all Obligations immediately due and payable, and Pledgee shall have all the default rights and remedies of a secured party under the California Uniform Commercial Code and other applicable law as well as the following rights and remedies, all of which may be exercised with or without further notice to Pledgor, at Pledgee's sole option and as Pledgee in its sole discretion may deem advisable:
8.2.1 to settle, compromise or release, on terms reasonably acceptable to Pledgee, in whole or in part, any amounts owing on the Collateral, and to extend the time of payment, in Pledgee's name or in the name of Pledgor, in respect thereof;
8.2.2 to apply to the payment of the Obligations, or collect the Collateral, notwithstanding any forfeiture of interest or loss of other rights of Pledgor against any obligor on the Collateral resulting from such action; and
8.2.3 to sell or otherwise dispose of the Collateral, or any part thereof, either at public or private sale, on any broker's board or securities exchange, in lots or in bulk, for cash, on credit or otherwise, with or without representations or warranties, and upon such terms as shall be acceptable to Pledgee.
8.3 The net cash proceeds resulting from the collection, liquidation, sale, or other agreement between Lessor disposition of the Collateral shall be applied first, to the expenses (including all reasonable attorneys' fees) of holding, storing, preparing for sale, selling, collecting, liquidating and Lessee the like, including any brokerage commissions and stamp or transfer taxes, and then to the satisfaction of all Obligations secured hereby, application as to any particular obligation or indebtedness or against principal or interest to be in Pledgee's absolute discretion.
8.4 If by reason of any prohibition contained in the Securities Act of 1933, as now or hereafter in effect, or in applicable California, Delaware or other state securities laws, as now or hereafter in effect, or in any rules or regulations pertaining to any of the foregoing laws, Pledgee believes in its sole judgment that it is compelled to resort to one or more private sales of the shares of stock constituting Collateral to a single purchaser or a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof, Pledgor acknowledges and agrees that private sales of such Collateral may be declared by Lessor a default under this held notwithstanding that such sales may be at prices and on other terms less favorable to Pledgor than if such Collateral were sold at public sale. Pledgor further agrees that Pledgee has no obligation to delay the sale of any such Collateral for the period of time necessary to permit registration of the Collateral, even if the issuer thereof would, or should, agree to register such Collateral for public sale under applicable securities laws. Pledgor specifically agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a "commercially reasonable" manner so long as all other agreementaspects of such private sales are commercially reasonable.
Appears in 1 contract
Default and Remedies. 17.1 You will be in default if any one or more of the following events occur:
(a) Lessor may You fail to deliver any of the StockCo Livestock in writing declare accordance with this Agreement Agreement;
(b) You do not pay all payments due to us on time and in default if: accordance with this Agreement;
(ic) Lessee breaches its obligation to pay rent You or any other sum when due and fails Guarantor becomes insolvent or bankrupt or enters into receivership, liquidation, external administration or becomes subject to cure any scheme of arrangement or composition of creditors;
(d) You cease to carry on farming the breach within ten Land or a substantial portion of it, on which the StockCo Livestock are being grazed unless you have first obtained our written consent to move the StockCo Livestock;
(10e) days; (ii) Lessee breaches You attempt to sell, dispose, sublease, encumber, create any security interest or otherwise deal with any of its insurance obligations under Section 9; the StockCo Livestock except in accordance with this Agreement;
(iiif) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any a representation or warranty made or repeated by Lessee you in connection with this Agreement shall be false is incorrect or misleading in a material way which in our opinion materially changes your ability to perform your obligations under this Agreement in an adverse way;
(g) You breach any material respect; of the covenants contained in clause 10;
(h) You part with possession of any of the StockCo Livestock except pursuant to this Agreement;
(i) You dispose of a substantial portion of the Land without giving to us at least 21 days prior written notice and first obtaining our written consent to move any StockCo Livestock;
(j) Any execution or other similar proceedings are levied or issued against the Land;
(k) If any indebtedness or obligations of you or any Guarantor to us is not paid, met or satisfied when due or becomes due and payable prior to its specified maturity or we become entitled to declare any indebtedness of you or such Guarantor due or you or any Guarantor makes default under any charge or security in favour of us.
17.2 If you are in default of this Agreement then we may give you notice at any time to remedy the default within 14 days. We may give a shorter notice period or no notice if the default is not capable of being remedied or if in our opinion the StockCo Livestock and their value may be at risk, either through being relocated, fluctuations in market values or the manner in which they are being fed and developed.
17.3 Upon expiry of any notice given under clause 17.2, and failing your remedying such default to our satisfaction, then:
(a) we may do one or more of the following:
(i) require you to immediately deliver up the StockCo Livestock to us at the property or properties as nominated by us;
(ii) as of right and without prior notice to you, enter the Land or any other property where we believe the StockCo Livestock may be located and repossess, carry out a sale of or xxxxxxxxx the StockCo Livestock. We may, at our discretion, deal with the StockCo Livestock, any part of the StockCo Livestock, or any products derived from the StockCo Livestock that we repossess or take in any manner that we see fit including without limitation by re-leasing, selling, or otherwise dealing with all or part of them. You agree to co-operate fully with the identification, rounding up and removal of the StockCo Livestock as required. All costs of or arising from such removal are to be paid by you;
(iii) undertake any of your obligations under this Agreement including, without limitation, your obligations to farm the StockCo Livestock under clause 10;
(iv) register a caveat over any Real Property in accordance with clause 26.2;
(v) Lessee take action under any security or any guarantor or other obligor for guarantee which has been granted to us in respect of the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concernAgreement; or
(vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.terminate this Agreement and
(b) After a default, at We shall no longer be required to make any payments to you other than an amount equal to the request surplus (if any) of Lessor, Lessee shall comply with funds received by us upon the provisions sale of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take StockCo Livestock that we have taken possession of after deducting all amounts we are entitled to under clause 12.6, any costs we have incurred in repossessing the Equipment. Lessee shall immediately pay StockCo Livestock or other expenses we have reasonably incurred in exercising our rights under this clause 17 and any other amount we are entitled to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior or may become entitled to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate You must indemnify us for any costs, loss, expense or liability in exercising our rights under this Agreement as clause except to the extent that such costs, loss, expense or liability were caused by our negligence, wilful misconduct or fraud.
17.4 Without diminution of any or all of the Equipment. A termination shall occur only upon written notice remedies provided by Lessor virtue of clause 17.3, in the event that you have sold or disposed or otherwise parted with the possession of any of the StockCo Livestock, or you have been in breach of your obligations under clause 15 to Lessee and only as make a payment to us for a period of more than 14 days then we, at our option, may make a demand on you for payment of a sum equal to the units StockCo Payment in respect of Equipment specified in all Stock. For the purposes of calculating the StockCo Payment the relevant date will be the date on which we make a demand on you for payment.
17.5 Interest will accrue on any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present amount that becomes due under clause 17 calculated at the place Default Rate from the date the amount fell due and compounded on the first day of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.calendar month
Appears in 1 contract
Samples: Master Livestock Agreement
Default and Remedies. (a) Lessor may Lessee shall be in writing declare default under this Agreement in default if: and under any Lease upon the occurrence of any of the following (each an "Event of Default", and collectively, the "Events of Default"):
(i) Lessee breaches its obligation fails to pay rent or any other sum when due and fails to cure the breach within ten (10) days; days after its due date, any Rent or any other amount due under this Agreement or any Lease;
(ii) Lessee breaches any of its insurance obligations under this Agreement or any other Document (as defined in Section 9; 16 hereof);
(iii) Lessee breaches any of its other obligations under any Lease (other than those described in Section 11(a)(i) and (ii) above), and fails to cure that breach within thirty (30) days after written notice from Lessor; ;
(iv) any representation representation, warranty or warranty covenant made by Lessee or any guarantor or surety for the obligations under any Lease (each a "Guarantor", and collectively, the "Guarantors") in connection with this Agreement or under any Lease shall be materially false or misleading in any material respect; materially misleading;
(v) any Equipment is illegally used;
(vi) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") Guarantor becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; ;
(vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; ;
(viii) a receiver is appointed for all or of any part of the property of Lessee or any Guarantor, or Lessee or any Guarantor makes any assignment for the benefit of its creditors;
(ix) Lessee or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or in the event an involuntary petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the such petition is not dismissed, dismissed within forty-five (45) days of the filing date; ;
(ixx) Lessee or any Guarantor breaches or is in default under any other agreement by and between Lessor (or any of its affiliates or parent entities) on the one hand, and Lessee or such Guarantor (or any of their respective parent or affiliates) on the other hand; provided however that any such default under this Section 11(a)(x) is not solely related to a material obligation for adverse change in Lessee’s financial condition;
(Axi) borrowed money, (B) the deferred purchase price of propertyany Guarantor revokes or attempts to revoke its obligations under its guaranty or any related document to which it is a party, or fails to observe or perform any covenant, condition or agreement to be performed under such guaranty or other related document to which it is a party;
(Cxii) payments due Lessee or any Guarantor defaults under any other agreement, document or instrument to which Lessee or any Guarantor is a party or by which Lessee or any Guarantor or any of their respective properties is bound, creating or relating to any obligations owed to a party other than Lessor (or any of Lessor’s affiliates or parent companies) (each a “Third Party Obligation” and collectively the lease agreement“Third Party Obligations”) (i) in excess of $3,000,000 if the payment or maturity of such Third Party Obligation(s) may be accelerated in consequence of such event of default or demand for payment of such Third Party Obligation(s) may be made; or (xii) an acceleration occurs of the payment or maturity of any Third Party Obligation(s) in excess of $1,500,000; provided however that any such default under this Section 11(a)(xii) is not solely related to a material adverse change in Lessee’s or any Guarantor's financial condition;
(xiii) there is any dissolution, dissolution or termination of existence of Lessee or existence, any Guarantor; or
(xiv) there is any merger, consolidation or change in controlling ownership or of Lessee or any Guarantor, but not to include an initial public offeringor either Lessee or any Guarantor sells or leases all, or any other stock offeringsubstantially all, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial conditionof its assets. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a defaultUpon the occurrence of any Event of Default and so long as the same shall be continuing, Lessor may, at its option, at any time thereafter, exercise one or more of the following remedies set forth in this Section 11, as Lessor in its sole discretion shall lawfully elect.
(i) Upon the request of Lessor, Lessee shall immediately comply with the provisions of Section 9(a10(a), (ii) and the following provisions Lessee shall apply also. Lessee hereby authorizes authorize Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. , (iii) Lessee shall immediately pay to Lessor without further demand as liquidated damages damages, for loss of a bargain and not as a penalty, an amount equal to (x) the Stipulated Loss Value of the Equipment (calculated as of the rent payment Rent Payment date prior to the declaration of default), and plus (y) all rents Rents and other sums then due under this Agreement Agreement, any Lease and all Schedules. , (iv) Lessor may cancel or terminate this Agreement the Lease as to any or all of the Equipment. A , and any cancellation or termination of Leases shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. , (v) Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. , (vi) Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. , (vii) Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The , (viii) Lessor shall have the right to apply the proceeds of any sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i1) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then then, (ii2) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii3) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv4) to Lessee, if there exists any surplussurplus shall be retained by Lessor. Lessee shall immediately pay any deficiency in (i1) and (ii2) above, to the extent any exists, (ix) Lessor shall be entitled to collect from Lessee all costs, charges, and expenses, including actual legal fees and disbursements, incurred by Lessor by reason of any Event of Default under the terms of this Agreement or under any other agreement between Lessor (or any of its affiliates or parent entities), on the one hand, and Lessee or any Guarantor (or any of their respective affiliates or parent entities), on the other hand, (x) Lessor may proceed by appropriate court action, either by law or in equity, to enforce the performance by Lessee of the applicable covenants of this Agreement and any Lease or to recover damages for breach hereof, and (xi) Lessor may exercise any rights it may have against any security deposit or other collateral pledged to it by Lessee, any Guarantor or any of their respective affiliates or parent entities.
(c) In addition to Lessor’s remedies set forth above, any rent or other amount not paid when due shall bear interest, from the due date until paid, at a per annum rate equal to the lesser of twelve percent (12%) or the maximum rate not prohibited by applicable law (the "Per Diem Interest Rate"). The application of such Per Diem Interest Rate shall not be interpreted or deemed to extend any cure period set forth herein, cure any default or otherwise limit Lessor's rights or remedies hereunder. Notwithstanding anything to the contrary contained in this Agreement or any Schedule, in no event shall this Agreement or any Schedule require the payment or permit the collection of amounts in excess of the maximum permitted by applicable law.
(d) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under any applicable statute, or international treaty, convention or protocol. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be deemed to be a waiver of any other or subsequent default.
(de) Any default Event of Default under the terms of this Agreement, any Lease or any other agreement between Lessor and Lessee may be declared by Lessor a default under this Agreement, any Lease and any such other agreementagreement between Lessor and Lessee.
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Default and Remedies. Section 24.01 The occurrence of any one or more of the following events shall, at Landlord’s option, constitute an event of default of this Lease:
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation if Tenant fails to pay rent any Rental by the first day of each month or any fails to pay other sum when due sums payable by Tenant hereunder by the first day of each month and fails to pay such sums within three (3) days of written notice thereof from Landlord (provided, however, if such event of default shall occur more than once in every 6 months period, Landlord shall not be required to provide any written notice of default, not provide any cure the breach within ten period and an event of default shall occur as and when such Rental or other sums becomes due and payable; or
(10b) days; (ii) Lessee breaches if Tenant shall fail to perform or observe any other term hereof or any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations the Rules and fails to cure that breach within thirty (30) Regulations and such failure shall continue for more than 30 days after written notice thereof from Lessor; Landlord.
(iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (viic) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee Tenant or any Guarantor guarantor of Tenant’s obligations under this Lease under any bankruptcy section or insolvency laws chapter of the present or future Bankruptcy Code or under any similar law or statute of the United States or any state thereof;
(d) if Tenant or guarantor of Tenant’s obligations under this Lease becomes insolvent or is determined to be insolvent or makes a transfer in fraud of creditors;
(e) if Tenant fails to take occupancy within 30 days of the commencement date;
(f) if Tenant or guarantor of tenant’s obligations under this Lease, makes an assignment for the benefit of creditors; or
(g) if a receiver, custodian or trustee is appointed for Tenant or for any of the assets of the Tenant which appointment is not vacated within 30 days of the date of such appointment.
Section 24.02 If an event of default occurs, at any time thereafter Landlord may do one or more of the following without any additional notice or demand:
(a) Terminate this Lease by giving written notice of the termination to the Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy Landlord may have, enter upon and take possession of the Premises and expel or remove Tenant and its effects without being liable to prosecution or any claim for damages therefore; and Tenant shall be liable to Landlord for all loss and damage which Landlord may suffer by reason of such termination, whether through inability to re-let the Premises or otherwise, including any loss of Rental for the remainder of the Term. Any such loss of Rental shall be offset by any Rental received by Landlord as a result of re-letting the Premises during the remainder of the Term.
(b) Terminate this Lease, in which event Tenant’s event of default shall be considered a total breach of Tenant’s obligations under this Lease and Tenant immediately shall become liable for such damages for such breach amount, equal to the total of:
(1) the costs of recovering the Premises;
(2) the unpaid Rental due for the remaining term as of the date of termination, plus interest thereon at a rate per annum from the due date equal to 18% over the Prime Rate.
(3) the total Rental and other benefits which Landlord would have received under the Lease for the remainder of the Term, at the rates then in effect, together with all other expenses incurred by Landlord in connection with Tenant’s default.
(4) all other sums of money and damages owing by Tenant and Landlord.
(c) Enter upon and take possession of the Premises as Tenant’s agent without terminating this Lease and without being liable to prosecution or any claim for damages therefore, and Landlord may re-let the Premises as Tenant’s agent and receive the Rental therefore, in which event Tenant shall pay to Landlord on demand the reasonable cost of renovating and repairing the Premises for a new Tenant or Tenants and any deficiency that may arise by reason of such re-letting; shall not release or affect Tenant’s liability for Rental or for damages.
(d) Upon the occurrence of any Event of Default which is not cured by the Tenant within the period of time provided herein, if any is so provided by the terms of this Lease, the Tenant hereby empowers any Prothonotary or any attorney of any court of record within the United States or elsewhere to appear for the Tenant, with declaration filed, and confess judgment against the Tenant in favor of the Landlord, its successors or assigns, as of any term, for any determined amount to which the Landlord would be entitled as damages under the provisions hereof including also any attorney fees for collection of the same plus ten percent (10%) of the total amount of such damages, together with costs of suit, and the Tenant hereby waives all errors, defects and imperfections in entering said judgment or in any writ, or process, or proceeding thereon or thereto or in anyway touching or concerning the same; and for the confession and entry of such judgment, this Lease or a true and correct copy thereof shall be sufficient warrant and authority. The authority and power contained herein shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as there is an occurrence of any Event of Default which is not cured by the Tenant as provided herein, or in the event of an involuntary petitionEvent of Default as defined herein; and furthermore such authority and power may be exercised during the original and any extension or renewal thereof, or after the petition is not dismissed, within forty-five (45) days expiration or earlier termination of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial conditionterm hereof. The default declaration interest rate of one and one-half percent per month (1.5% per month) shall apply to all Schedules unless specifically excepted by Lessorsurvive the entering of judgment.
(be) After a defaultWhen this lease shall be terminated or cancelled by reason of breach of any provision hereof, at either during the request original term of Lessorthis lease or any renewal thereof, Lessee and also as soon as the term hereby created or any renewal thereof shall comply with have expired, it shall be lawful for any attorney as attorney for Tenant to file an agreement for entering in any court of competent jurisdiction an amicable action and confession of judgment in ejectment against the provisions Tenant and all persons claiming under the Tenant for the recovery by the Landlord of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee Premise, for which this lease or a true and correct copy thereof shall immediately pay be his sufficient warrant, whereupon, if the Landlord so desires, a writ of possession may issue forthwith, without any prior writ or proceedings whatsoever, and provided that if for any reason after such action shall have commenced the same shall be terminated and possession remain in or be restored to Lessor without further demand as liquidated damages for loss of a bargain and not as a penaltythe Tenant, the Stipulated Loss Value Landlord shall have the right upon any subsequent default or defaults, or upon the termination or cancellation of this lease as hereinbefore set forth, to bring one or more amicable action or actions as hereinbefore set forth to recover possession as aforesaid.
(f) Do whatever Tenant is obligated to do under this Lease and may enter the Equipment (calculated as of the rent payment date prior Premises without being liable to the declaration of default)prosecution or any claim for damages therefore, to accomplish this purpose. Tenant shall reimburse Landlord immediately upon demand for any expenses which Landlord incurs in thus effecting compliance with this Lease on Tenant’s behalf, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but Landlord shall not be required toliable for any damages suffered by Tenant from such action, sell Equipment at private unless caused by the negligence or public sale, in bulk willful misconduct of Landlord or in parcels, with otherwise.
Section 24.03 No act or without noticething done by Landlord or its agents during the Term shall constitute an acceptance of an attempted surrender of the Premises, and without having no agreement to accept a surrender of the Equipment present Premises or to terminate this Lease shall be valid unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease, unless a written notice of such intention is given to Tenant. Notwithstanding any such re-letting or re-entry or taking possession, Landlord may at the place any time thereafter terminate this Lease for a previous default. Landlord’s acceptance of sale. Lessor may also, but partial payment of Rental following an event of default hereunder shall not be required to, lease, otherwise dispose construed as a waiver of or keep idle all or part such event of the Equipmentdefault. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid No waiver by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place Landlord of any advertising. Lessee breach of this Lease shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be constitute a waiver of any other violation or subsequent defaultbreach of any time of the terms hereof. Forbearance by Landlord to enforce one or more of the remedies herein provided upon a breach hereof shall not constitute a waiver of any other breach of the Lease.
(d) Any default under Section 24.04 No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing and signed by Landlord nor shall any custom or practice which may evolve between the parties in the administration of the terms of this Lease be constituted to waive or any lessen Landlord’s right to insist upon strict performance of the terms of this Lease. The rights granted to Landlord in this Lease shall be cumulative of every other agreement between Lessor right or remedy which Landlord may otherwise have at law or in equity or by statue, and Lessee may be declared by Lessor a default under this and any such the exercise of one or more rights or remedies shall not prejudice or impair the current or subsequent exercise of other agreementrights or remedies.
Appears in 1 contract
Default and Remedies. (a) Lessor may in writing declare this Agreement in It shall be deemed a default if: hereunder if any of the following shall occur:
(i) Lessee breaches its obligation Tenant shall fail, for any reason, to pay rent or make any other sum payment of Rent as and when the same is due to be paid hereunder and fails to cure the breach within ten such default shall continue for five (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (305) days after written notice from Lessor; is given to Tenant;
(ii) Tenant shall fail, for any reason, to perform any other covenant, condition, agreement or other obligation on the part of Tenant to be observed or performed pursuant to this Lease (other than the payment of any Rent and except for such events described in subsections 16.1(iii) through 16.1(viii)), and such default shall continue for fifteen (15) days after written notice thereof or such shorter period as expressly provided herein or, provided such default can be cured and Tenant is acting diligently, continuously and in good faith, such longer period as may be reasonably required to complete the remedying of such default;
(iii) Tenant shall make a Transfer affecting the Premises, other than in compliance with and as expressly authorized by this Lease;
(iv) Tenant or any representation other occupant of the Premises makes an assignment for the benefit of creditors or warranty becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors, or makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation), or steps are taken or action or proceedings commenced by Lessee in connection with this Agreement any Person for the dissolution, winding up or other termination of Tenant’s existence or for the liquidation of Tenant’s assets (provided the foregoing shall not be false considered a default hereunder if such steps or misleading in any material respect; action or proceedings are the subject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof);
(v) Lessee a trustee, receiver, receiver-manager, manager, agent or other like Person shall be appointed in respect of the assets or business of Tenant or any guarantor or other obligor for occupant of the Lessee's obligations hereunder Premises, and is not removed within fifteen ("GUARANTOR"15) becomes insolvent or ceases to do business as a going concern; days after such appointment;
(vi) any Equipment is illegally usedTenant abandons the Premises; or
(vii) if Lessee a writ of execution has been filed against Tenant or this Lease or any Guarantor is goods or other property of Tenant shall at any time be seized or taken in execution or attachment and such writ or seizure or taking remains unsatisfied for a natural person, any death or incompetency period of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (455) days or more (provided that the foregoing shall not be considered a default hereunder if such writ or seizure or taking is the subject of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not a bona fide dispute between Tenant and such Person and Tenant delivers to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.Landlord satisfactory evidence thereof);
(b) After a defaultIf there is an event of default then, without prejudice to and in addition to any other rights and remedies to which Landlord is entitled pursuant hereto or at law, the request of Lessor, Lessee shall comply with the provisions of Section 9(a) then current and the next three (3) months’ Rent shall be forthwith due and payable and Landlord shall have the following provisions shall apply also. Lessee hereby authorizes Lessor rights and remedies, all of which are cumulative and not alternative:
(i) to peacefully enter any premises where any Equipment may be and take possession terminate this Lease in respect of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value whole or any part of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon Premises by written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but Tenant (it being understood that actual possession shall not be required toto effect a termination of this Lease and that written notice alone shall be sufficient), sell Equipment at private or public saleit being understood and agreed that, if this Lease is terminated in bulk or in parcels, with or without notice, and without having the Equipment present at the place respect of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises Premises, this Lease shall thereupon be deemed amended as necessary to give effect thereto without need for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then further amendment;
(ii) to enter the extent not previously paid by LesseePremises as agent of Tenant and as such agent to relet them for whatever term (which may be for a term extending beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefor and, as the agent of Tenant, to pay Lessor take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same at the expense and risk of Tenant or to sell or otherwise dispose of the same at public or private sale without further notice, and to make such alterations to the Premises in order to facilitate their re-letting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the re-letting of the Premises, less all sums expenses incurred by Landlord in making the Premises ready for re-letting and in re-letting the Premises, on account of the Rent due from Lessee and to become due under this AgreementLease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; then no such entry or taking possession of or performing alterations to or re-letting of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
(iii) to reimburse remedy or attempt to Lessee remedy any sums previously default of Tenant in performing any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant therefor and without any liability for any damages resulting thereby, and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord’s covenants hereunder and without thereby being deemed to infringe upon any of Tenant’s rights pursuant hereto, and, in such case, Tenant shall pay to Landlord forthwith upon demand all amounts paid by Lessee as liquidated damages; Landlord to third parties in respect of such default and then all reasonable costs of Landlord in remedying or attempting to remedy any such default plus fifteen percent (15%) of the amount of such costs for Landlord’s inspection, supervision, overhead and profit;
(iv) to Lesseeobtain damages from Tenant including, without limitation, if there exists any surplus. Lessee this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time, it being agreed that Landlord shall immediately pay any deficiency in (i) and (ii) above.have no obligation to mitigate its damages whether or not this Lease is terminated; and
(cv) The foregoing remedies are cumulative, and any or all thereof may be exercised instead if this Lease is terminated due to the default of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this AgreementTenant, or if prohibited it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant (collectively “Disclaimer”), to obtain payment from Tenant of the value of all tenant inducements which were received by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other agreement between Lessor work for Tenant’s benefit completed at Landlord’s cost and Lessee may moving allowance, which value shall be declared multiplied by Lessor a default under fraction, the numerator of which shall be the number of months from the date of Disclaimer to the date which would have been the natural expiry of this Lease but for such Disclaimer, and any such other agreementthe denominator of which shall be the total number of months of the Term as originally agreed upon.
Appears in 1 contract
Default and Remedies. An event of default ("Event of Default") shall be deemed to have occurred hereunder and Purchaser shall have no further obligation to purchase Accounts and may immediately exercise its fights and remedies with respect to the Eligible Accounts and the Collateral under this Agreement, the Uniform Commercial Code, and applicable law, upon the happening of one or more of the following:
(a) Lessor may Either Seller shall fail to pay when due any amount owed to Purchaser, whether arising hereunder or otherwise;
(b) There shall be commenced by or against either Seller any voluntary or involuntary case under the federal Bankruptcy Code, or any assignment shall be made by either Seller for the benefit of its creditors, or there shall be appointment of a receiver or custodian for a substantial portion of either Seller's assets;
(c) Either Seller shall become insolvent in writing declare this Agreement that its debts are greater than the fair value of its assets, or either Seller is generally not paying its debts as they become due;
(d) Any involuntary lien, garnishment, attachment or the like shall be issued against or shall attach to the Eligible Accounts, the Eligible Inventory, the Collateral, any other assets of either Seller or any portion thereof;
(e) Either Seller shall suffer the entry against it of a final judgment for the payment of money in default if: excess of $25,000, unless the same is discharged within 30 days after the date of entry thereof or an appeal or appropriate proceeding for review thereof is taken within such period and a stay of execution pending such appeal is obtained;
(f) Either Seller shall breach any covenant or agreement made by it herein;
(g) Any warranty or representation set forth herein shall be untrue when made or any report, certificate, schedule, financial statement, profit and loss statement or other statement furnished by either Seller, or by any other person on behalf of either Seller, to Purchaser is not true and correct furnished;
(h) Either Seller shall have a federal or state tax lien filed against any of its properties, or either Seller shall fail to pay any federal or state tax when due, or either Seller shall fail to file any federal or state tax form when due;
(i) Lessee breaches its obligation In Purchaser's sole judgment, a material adverse change shall have occurred in either Seller's financial condition, business or operations or the value of the Collateral; or
(j) In Purchaser's sole judgment, the prospect for payment of any amounts due to pay rent or any other sum when due and fails to cure it hereunder shall have become impaired.
(k) Either Seller shall have ceased the breach within ten (10) days; (ii) Lessee breaches any operation of its insurance obligations business.
(l) A default or an event of default shall have occurred under Section 9; any instrument or agreement relating to, securing, creating or evidencing debt owed by I-Con to Winterstone Management, Inc., Touchstone Enterprises, Inc. or Associates Funding Group, Inc., any such debt shall have been accelerated or called due prior to maturity.
(iiim) Lessee breaches any An "event of its other obligations default" shall have occurred under the Security Agreement or the Loan and fails Security Agreement (as amended, supplemented or modified from time to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation time, the "BC&Q Loan Agreement"), dated as of October 22, 1997, between BC&Q Corp. and Purchaser, or warranty made the indebtedness evidenced by Lessee in connection with this the Guarantee or the BC&Q Loan Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for have been accelerated. Upon the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event occurrence of an involuntary petitionEvent of Default described in clauses (5) or (c) of this Section 10, Sellers immediately shall repurchase from Purchaser all outstanding Eligible Accounts purchased by Purchaser from Sellers hereunder at a price equal to the aggregate face amount thereof and shall pay to Purchaser all other amounts owing by Sellers to Purchaser hereunder, whether or not then due, including, without limitation, the petition is not dismissedoutstanding principal balance of all Inventory Advances and accrued but unpaid interest thereon, within forty-five (45) days all without demand, presentment, notice of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price demand or of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringdishonor and nonpayment, or any other stock offeringnotice or declaration of any kind, preferred all of which are hereby expressly waived by Sellers. During the continuation of any other Event of Default, Purchaser, at any time, may require Sellers to common(and Sellers shall) repurchase from Purchaser all outstanding Eligible Accounts purchased by Purchaser from Sellers hereunder at a price equal to the aggregate face amount thereof and pay to Purchaser all other amounts owing by Sellers to Purchaser hereunder, whether or not then due, including, without limitation, the outstanding principal balance of all Inventory Advances and accrued but unpaid interest therein, all without notice, demand, presentment, notice of demand or of dishonor and nonpayment, or any notice or declaration of any kind, all of which are hereby expressly waived by Sellers. In addition to, and without limitation of, the foregoing provisions of this Agreement, if an Event of Default shall have occurred and be continuing, Purchaser may from time to time in its discretion, without limitation and without notice except as expressly herein: (a) exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code (the "UCC") (whether or not the IJCC applies to the affected Collateral); (5) require Sellers to, and Sellers hereby agree that they will at their expense, assemble all or part of the Collateral as directed by Purchaser and make it available to Purchaser at a place to be designated by Purchaser; (c) reduce its claim to judgment or foreclose. or otherwise enforce, in whole or in part, the security interest created hereby by any available judicial procedure; (d) dispose of, at its office, on the premises of Sellers or elsewhere, all or any part of the Collateral, as a unit or in parcels, by public or private proceedings; (e) buy the Collateral, or any part thereof, at any public sale, or at any private sale if the Collateral is of a type customarily sold in a recognized market or is of a type that is the subject to widely distributed standard price quotations; (f) apply by appropriate judicial proceedings for appointment of a receiver for the Collateral, or any part thereof, and Sellers hereby consent to any such appointment; and (g) at its discretion, retain the Collateral in satisfaction of the obligations due Purchaser hereunder whenever the circumstances are such that Purchaser is entitled to do so under the UCC or otherwise. Sellers agree that, to the extent notice of sale shall be required by law, at least five days' notice to Sellers of the time and place of any public sale or the time after which the primary purpose any private sale is to raise cash equity; be made shall constitute reasonable notification. Purchaser shall not be obligated to make any sale of Collateral regardless of whether any notice of sale has been given. Purchaser may adjourn any public or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply private sale from time to all Schedules unless specifically excepted time by Lessor.
(b) After a default, announcement at the request time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. If any Event of LessorDefault shall have occurred and be continuing, Lessee shall comply with the provisions Purchaser may in its discretion apply any cash proceeds received by Purchaser in respect of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where sale of, collection from, or other realization upon all or any Equipment may be and take possession part of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penaltyCollateral, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice following in such order as Purchaser may elect: (a) the repayment of all or any portion of the obligations owed to Purchaser by Lessor to Lessee Sellers, whether hereunder or otherwise; (5) the repayment of reasonable costs and only as to the units of Equipment specified in any such notice. Lessor mayexpenses, but shall including reasonable attorneys' fees and legal expenses, incurred by Purchaser (whether or not be required to, sell Equipment at private litigation has been commenced or public sale, in bulk or in parcels, with or without noticea judgment has been issued, and without having the Equipment present if litigation has been commenced, whether at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of trial or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied appellate level) in the following order of priorities: connection with (i) to pay all the administration of Lessor's coststhis Agreement, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lesseecustody, to pay Lessor all sums due from Lessee under this Agreement; then preservation, use or operation of, of the sale of, collection from, or other realization upon, any Collateral, (iii) to reimburse to Lessee the exercise or enforcement of any sums previously paid by Lessee as liquidated damages; and then of the rights of Purchaser hereunder, or (iv) the failure of Sellers to Lessee, if there exists perform or observe any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
of the provisions hereof; (c) The foregoing remedies are cumulativethe payment or other satisfaction of any liens and other encumbrances upon any of the Collateral; (d) the reimbursement of Purchaser for the amount of any obligations of Sellers paid or discharged by Purchaser, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with expenses of Purchaser payable by Sellers hereunder; (e) by holding the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum same as may be permitted. Waiver of any default shall not be a waiver Collateral; (f) the payment of any other or subsequent default.
amounts required by applicable law (d) Any default under including, without limitation, Part 5 of Article 9 of the terms of this UCC or any other agreement between Lessor successor or similar applicable statutory provision); and Lessee may (g) by delivery to Sellers or to whomsoever shall be declared by Lessor lawfully entitled to receive the same or as a default under this and any such other agreementcourt of competent jurisdiction shall direct.
Appears in 1 contract
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; or
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessordays.
(b) After a If Debtor is in default, the Secured Party, at the request of Lessorits option, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to declare any or all of the EquipmentIndebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. A termination The accelerated obligations and liabilities shall occur only upon written notice by Lessor to Lessee bear interest (both before and only as to the units of Equipment specified after any judgment) until paid in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present full at the place lower of sale. Lessor may also, but shall eighteen percent (18%) per annum or the maximum rate not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by applicable law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. 401. Events of Default. A failure by any party to perform any action or covenant required by this Agreement, the Regulatory Agreement, the Agency Loan Promissory Note and/or the Agency Loan Deed of Trust within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a “Default” under this Agreement. A party claiming a Default shall give written notice of Default to the other parties specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party cures such default within five (a5) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation days if the claimed Default is a failure to pay rent amounts due pursuant to the Agency Loan Promissory Note, or any thirty (30) days from receipt of such notice for all other sum when due claimed Defaults hereunder. However, in the event that such Default is other than a failure to pay money and fails to cure the breach within ten (10) days; (ii) Lessee breaches any is of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure such a nature that breach it cannot reasonably be cured within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency receipt of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petitionnotice, the petition is claimant shall not dismissedinstitute any proceeding against the other party, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but party shall not be required to, sell Equipment at private or public sale, in bulk or in parcelsDefault if such party immediately upon receipt of such notice, with due diligence, commences to cure, correct or without noticeremedy such failure or delay and completes such cure, correction or remedy with diligence as soon as reasonably possible thereafter. In the event that the Developer is in default on any loan or deed of trust, the Developer shall immediately deliver to the Agency a copy of such notice of default. Even if the holder of such loan or deed of trust has not exercised its rights or remedies with respect to such default, the Agency shall each have the right (but not be obligated to) cure such default. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses they have actually incurred in curing such default. The Agency (as applicable) shall be entitled to add the amount incurred by it to the amounts owing pursuant to the Agency Loan Promissory Note , and without having secured by the Equipment present at the place Agency Loan Deed of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveTrust.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Affordable Housing Agreement
Default and Remedies. (a) Lessor may in writing declare 12.1 The occurrence of any of the following shall constitute a default under this Agreement in default ifby Licensee: (i) Lessee breaches its obligation to pay rent Licensee shall default in the payment of any installment of the License Fee or any other sum when due charges hereunder, at the time and fails in the amount as herein provided, and if Licensee shall fail to cure the breach said default within ten (10) daysdays after notice of such default from Licensor; (ii) Lessee breaches Licensee violates or fails to perform any of its insurance obligations under Section 9; the other terms, covenants or conditions herein made by Licensee, and such violation or failure shall continue for a period of thirty (iii30) Lessee breaches any of its other obligations and fails days after notice to Licensee by Licensor or, if such violation or failure shall reasonably require longer than thirty (30) days to cure, if Licensee shall fail to commence to cure that breach same within thirty (30) days after written notice from Lessorthereof and continuously prosecute the curing of same to completion with due diligence; (iii) Licensee makes a general assignment for the benefit of its creditors or shall file or have filed involuntarily against Licensee a petition for bankruptcy or other reorganization, liquidation, dissolution or similar relief; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition proceeding is filed by or against Lessee or Licensee seeking any Guarantor under any bankruptcy or insolvency laws relief mentioned in (iii) above and in the event of an involuntary petition, the petition said proceeding is not dismissed, discharged within forty-five ninety (4590) days of the filing datethereof; (ixv) Lessee default under any other material obligation a trustee, receiver or liquidator is appointed for (A) borrowed money, (B) the deferred purchase price Licensee on a substantial part of its property, or (C) payments due under the lease agreement; (xvi) there is any dissolutionLicensee shall vacate or abandon the Premises; (vii) Licensee mortgages, termination assigns, sublets or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any otherwise encumbers its interest other stock offering, preferred to common, in which the primary purpose is to raise cash equitythan as specifically permitted under this Agreement; or (xiviii) there Licensee is a material adverse change in default under the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorVehicle Service Agreement.
12.2 If a default by Licensee occurs, Licensor shall have all rights and remedies that are available under applicable state and federal law, including, without limitation, the right to (bi) After a default, at consider the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be Agreement terminated and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages Premises for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use LesseeLicensor's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipmentown purposes; then (ii) to take possession of the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated Premises for Licensee's account and seek general damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.All
Appears in 1 contract
Samples: License Agreement (Prosource Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 98; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTORGuarantor") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also). Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: if (i) Lessee breaches its obligation obligations to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from form Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTORGuarantor") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee lessee or any Guarantor guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) . After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also109a). Lessee lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedulesschedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Following termination hereunder, Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated sated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses expense incurred in taking, removing, holding, repairing and selling, leasing or otherwise other disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplussurplus shall be retained by Lessor. Lessee lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) . The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessorlessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) . Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. 14.1 An event of default (aeach an “Event of Default”) shall have occurred under this Lease if:
a. Lessee shall fail to pay any Rent under this Lease, the payments on any other lease or indebtedness of Lessee to Lessor may arising independently of this Lease, or other amount required in writing declare this Agreement Lease when the payment becomes due and payable, after the expiration of any applicable grace or cure period;
b. Lessee shall fail to perform or observe according to its terms any covenant contained in this Lease otherwise be in default if: (i) Lessee breaches in the performance of any of its obligation to pay rent obligations under this Lease or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation instrument or warranty made by Lessee document executed in connection with this Agreement Lease, including any Affiliated Agreement;
c. Lessee shall be false or misleading in any material respect; become insolvent (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do however defined), cease business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee , make an assignment for the benefit of creditors, or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) cause a petition is for receiver or in bankruptcy to be filed by or against Lessee (including a petition for reorganization or any Guarantor under any bankruptcy an arrangement), which appointment or insolvency laws and in the event of an involuntary petition, the petition procedure is not dismissedvacated within 30 days thereof;
d. Lessee shall attempt to remove, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed moneysell, (B) the deferred purchase price of propertytransfer, encumber, sublet, assign, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply part with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. ;
e. Lessee shall immediately pay commit or fail to commit any act that results in jeopardizing the rights of Lessor without further demand or causes Lessor to reasonably deem itself insecure as liquidated damages for loss to Lessor’s rights under this Lease;
f. an event of a bargain and not as a penalty, default under the Stipulated Loss Value Master Lease or the termination of Lessee’s possessory rights under the Master Lease.
14.2 If any of the Equipment (calculated as Events of the rent payment date prior to the declaration of default)Default set forth under Sections 14.1.a – 14.1e shall have occurred, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcelsLessor’s agent, with or without noticenotice to Lessee, shall have the right to exercise concurrently or separately, and without having any election of remedies to be deemed made, any of the following remedies:
a. Elect that the Rental payments due under this Lease be accelerated and the entire unpaid portion of the Base Rent be due immediately;
b. Terminate this Lease;
c. Enter on Lessee’s premises and without any court order or other process of law repossess and remove the Equipment, whether with or without notice to Lessee. Any such repossession shall not constitute a termination of this Lease unless Lessor so notifies Lessee in writing, and Lessor shall have the right, at Lessor’s option, to lease the Equipment present to any other person or persons on such terms and conditions as Lessor shall determine;
d. Sell the Equipment to the highest bidder at the place of salepublic or private sale and seek any deficiency from Lessee. Lessor may alsobe the purchaser at any such sale, but and Lessee affirmatively waives any claim that any such sale was not conducted in a commercially reasonable manner; or
e. Exercise any remedy available to Lessor at law or in equity. Lessee shall not further be required toresponsible for all costs and expenses, leaseincluding reasonable attorneys’ fees, incurred by Lessor in exercising any remedy under this Lease, including without limitation repossessing, releasing, transporting, repairing, selling, or otherwise dispose handling the Equipment, or collecting any Rent, additional Rent or any other charges due Lessor under this Lease, regardless of or keep idle all or part whether suit is filed. If any of the Equipment. Lessor may use Lessee's premises for a reasonable period Events of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if anyDefault set forth under Section 14.1.f, shall be applied in the following order of priorities: (i) to pay all of Lessor's costshave occurred, charges and expenses incurred in takingLessee or Lessee’s agent, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) with written notice to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovehave the right to terminate this agreement immediately.
(c) The foregoing 14.3 All remedies of Lessor under this Lease are cumulative, and any or all thereof may may, to the extent permitted by law, be exercised instead of concurrently or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof)separately, and the manner and place exercise of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default one remedy shall not be a waiver deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of the Lessor to exercise and no delay in exercising any right or subsequent default.
(d) Any default under the terms remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Lessor of this any right or remedy hereunder preclude any other agreement between Lessor and Lessee may be declared by Lessor a default under this and or further exercise of any such other agreementright or remedy.
Appears in 1 contract
Samples: Equipment Lease
Default and Remedies. An Event of Default shall be deemed to have occurred hereunder and FGI may immediately exercise its rights and remedies with respect to the Purchased Accounts and the Collateral under this Agreement, upon the happening of one or more of the following: (a) Lessor may in writing declare this Agreement in default if: Seller shall fail to pay as and when due any amount owed to FGI; (b)
(i) Lessee breaches its obligation the commencement of any action for the dissolution or liquidation of Seller, or the commencement of any proceeding to pay rent avoid any transaction entered into by Seller, or the commencement of any case or proceeding for reorganization or liquidation of Seller’s debts under the federal bankruptcy code or any other sum when due state or federal law, now or hereafter enacted for the relief of debtors, whether instituted by or against Seller; provided however, that Seller shall have thirty (30) days to obtain the dismissal or discharge of involuntary proceedings filed against it, it being understood that during such thirty (30) day period, (ii) Seller makes or proposes in writing, an assignment for the benefit of creditors generally, offers a composition or extension to creditors, or makes or sends notice of an intended bulk sale of any business or assets now or hereafter owned or conducted by Seller, or (iii) the appointment of a receiver, liquidator, custodian, trustee or similar official or fiduciary for Seller or for Seller’s property; (c) Seller shall become insolvent in that its debts are greater than the fair value of its assets, or Seller is generally not paying its debts as they become due; (d) any involuntary lien, garnishment, attachment or the like shall be issued against or shall attach to the Purchased Accounts, the Collateral or any portion thereof and fails to cure the breach same is not released within ten (10) days; (iie) Lessee breaches any Seller suffers the entry against it for a final judgment for the payment of its insurance obligations under Section 9; (iii) Lessee breaches any money in excess of its other obligations and fails to cure that breach $50,000, unless the same is discharged within thirty (30) days after written notice from Lessorthe date of entry thereof or an appeal or appropriate proceeding for review thereof is taken within such periods and a stay of execution pending such appeal is obtained; (ivf) Seller shall breach any covenant, warranty or representation set forth herein or same shall be untrue when made; (g) any representation report, certificate, schedule, financial statement, profit and loss statement or warranty made other statement furnished by Lessee in connection with this Agreement shall be false Seller, or misleading by any other person on behalf of Seller, to FGI is not true and correct in any material respect; (vh) Lessee Seller shall have a federal or state tax lien filed against any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyits properties, or (C) payments due under the lease agreement; (x) there is shall fail to pay any dissolution, termination federal or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offeringstate tax when due, or shall fail to file any other stock offering, preferred to common, in which the primary purpose is to raise cash equityfederal or state tax form as and when due; or (xii) there is a material adverse change shall have occurred in Seller’s financial conditions, business or operations. Upon the Lessee's financial condition. The default declaration occurrence of an Event of Default, all obligations owing to FGI (including the Obligations) shall apply to all Schedules unless specifically excepted by Lessor.
become immediately due and owing at the option of FGI (provided upon the occurrence of an Event of Default under clause (b) After above, all such amounts shall become immediately due and payable without further notice or demand) and FGI shall be entitled to any form of equitable relief that may be appropriate without having to establish any inadequate remedy at law or other grounds other than to establish that its Collateral is subject to being improperly used, moved, dissipated or withheld from FGI. FGI shall be entitled to freeze, debit and/or effect a defaultset-off against any fund or account Seller may maintain with any Bank. In the event FGI deems it necessary to seek equitable relief, at including, but not limited to, injunctive or receivership remedies, as a result of and Event of Default, Seller waives any requirement that FGI post or otherwise obtain or procure any bond. Alternatively, in the request of Lessorevent FGI, Lessee shall comply in its sole and exclusive discretion, desires to procure and post a bond, FGI may procure and file with the provisions court a bond in an amount up to and not greater than $10,000 notwithstanding any common or statutory law requirement to the contrary. Upon FGI’s posting of Section 9(a) and the following provisions such bond it shall apply alsobe entitled to all benefits as if such bond was posted in compliance with state law. Lessee hereby authorizes Lessor to peacefully enter Seller also waives any premises where any Equipment right it may be entitled to, including an award of attorney’s fees or costs, in the event any equitable relief sought by and take possession of the Equipment. Lessee shall immediately pay awarded to Lessor without further demand as liquidated damages FGI is thereafter, for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of defaultwhatever reason(s), and all rents and other sums then due under this Agreement and all Schedulesvacated, dissolved or reversed. Lessor may terminate this Agreement as to any All post-judgment interest shall bear interest at either the contract rate, 18% per annum or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum higher rate as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultallowed by law.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Ocz Technology Group Inc)
Default and Remedies. (a) Lessor may in writing declare this Agreement Each Debtor shall be in default if: hereunder upon the occurrence of any one of the following events (each an "Event of Default"):
(i) Lessee breaches its obligation any Debtor shall fail to pay rent or any other sum amount payable in respect of any Liability when due and fails to cure (including the breach within ten (10) days; expiration of any applicable grace periods).
(ii) Lessee breaches any representation, warranty or information herein, heretofore or hereafter furnished to the Secured Party by any Debtor in connection with any of its insurance obligations under Section 9; (iii) Lessee breaches the Liabilities, including any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee the Debtor through the submission of any schedule, statement, certificate or other document pursuant to or in connection with this Agreement Agreement, shall be false or misleading in any material respect; .
(viii) Lessee or there shall exist any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business Event of Default as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due defined under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCredit Agreement.
(b) After a defaultUpon the occurrence of any Event of Default which shall be continuing, at (i) unless the request Secured Party elects otherwise, the entire unpaid amount of Lessorsuch of the Liabilities as is not then otherwise due and payable shall become immediately due and payable without notice to or demand on any Debtor, Lessee shall comply with (ii) the provisions of Section 9(a) and Secured Party or its agents may enter each Debtor's premises to exercise the following provisions shall apply also. Lessee hereby authorizes Lessor Secured Party's right to peacefully enter any premises where any Equipment may be and take possession of any Collateral, and (iii) the Equipment. Lessee shall immediately pay Secured Party may at its option exercise from time to Lessor without further demand as liquidated damages for loss of a bargain time any and not as a penaltyall rights and remedies available to it under the Uniform Commercial Code or otherwise, including the Stipulated Loss Value right to assemble or foreclose or otherwise realize upon any of the Equipment (calculated as Collateral and to dispose of any of the rent payment date Collateral at one or more public or private sales or other proceedings. Each Debtor agrees that the Secured Party or its nominee may become the purchaser at any such sale or sales. Each Debtor further agrees that ten (10) days shall be reasonable prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all notice of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units date of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private public sale or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place other disposition of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or any part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any Collateral, or all of the purposes stated above without liability for rent, costs, damages date on or otherwise. The proceeds of sale, lease after which any private sale or other disposition, if any, shall disposition of the same may be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovemade.
(c) The foregoing remedies are cumulativeexercise by the Secured Party of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, and the Secured Party may proceed against each Debtor and the Collateral and any other collateral granted by each Debtor to the Secured Party under any other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or bar on any future occasion. All property of any kind held at any time by the Secured Party as Collateral shall stand as one general continuing collateral security for all thereof the Liabilities and may be exercised instead retained by the Secured Party as security until all the Liabilities are fully satisfied. Each Debtor shall pay to the Secured Party on demand any and all expenses (including reasonable attorneys' fees and legal expenses) which may have been incurred by the Secured Party with interest at the Prevailing Interest Rate (i) in the prosecution or defense of any action growing out of or in addition to each other connected with the subject matter of this Agreement, the Liabilities, the Collateral or any remedies of the Secured Party's rights therein or thereto; or (ii) in connection with the custody, preservation, use, operation, preparation for sale or sale of any of the Collateral, the incurring of all of which are hereby authorized to the extent the Secured Party deems the same advisable. Each Debtor's liability to the Secured Party for any such payment with interest shall be included in the Liabilities. The Proceeds of any Collateral received by the Secured Party at lawany time before or after default, in equity, or under statute. Lessee waives notice of whether from a sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense Collateral or preservation of Lessor's rights and remedies under this Agreementotherwise, or if prohibited by lawthe Collateral itself, such lesser sum as may be permittedapplied to the payment in full or in part of such of the Liabilities and in such order and manner as the Secured Party may elect. Waiver Each Debtor to the extent of its rights in the Collateral waives and releases any default shall not be a waiver right to require the Secured Party to collect any of the Liabilities from any other or subsequent default.
(d) Any default under of the terms of this Collateral or any other agreement between Lessor and Lessee may be declared collateral then held by Lessor a default the Secured Party under this and any such other agreementtheory of marshaling of assets or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Sjit Inc)
Default and Remedies. (a) Lessor may An Event of Default shall occur if:
a. if a Default, as defined in writing declare this Agreement in default if: (i) Lessee breaches its obligation Section 11 of the Prime Lease, shall occur with respect to the Sublessee.
b. Sublessee fails to pay rent or any other sum when due and fails any installment of Annual Rent, without notice or demand, provided, however that Sublessor agrees to permit Sublessee to cure such monetary default by paying the breach late fee set forth herein,, within ten five (105) days; days after receipt of written notice to Sublessee of such non-payment of Annual Rent (ii) Lessee breaches "Grace Period"), provided further that such Grace Period shall only be permitted to occur twice in any of its insurance obligations twelve month period.
c. Sublessee shall fail to perform or observe any non-monetary covenant, condition or agreement to be performed or observed by it under Section 9; this Sublease and such failure continues uncured for more than twenty (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (3020) days after written notice from Lessorthereof to Sublessee by Sublessor (unless such default is of a nature that it cannot be cured within such twenty (20) day period, in which event no default shall occur so long as Sublessee shall diligently commence the curing of the default within the twenty (20) day cure period and promptly prosecutes the curing of the same), provided further that such event of default shall not be deemed an Event of Default under the Prime Lease, in which event the notice periods set forth in the Prime Lease shall control.
d. Sublessee attempts to remove, sell, transfer, encumber, part with possession or sublet the Equipment, as defined under the Antigenics Leasehold Lease, without the prior written approval of Sublessor.
e. Sublessee, as Lessee, defaults under the Antigenics Leasehold Lease. Upon the occurrence of an Event of Default and the expiration of any applicable notice and cure period, Sublessor shall have all the rights and remedies provided by applicable law, this Sublease, the Prime Lease and/or the Antigenics Leasehold Lease. In addition, Sublessor, at its sole election, may:
a. declare all unpaid Annual Fixed Rent and other sums due and to become due hereunder under this Sublease immediately due and payable; (iv) any representation and/or
b. proceed by appropriate court action or warranty made actions or other proceedings either at law or in equity to enforce performance by Lessee of any and all covenants of this Sublease and to recover damages for the breach thereof; and/or
c. draw on the Letter of Credit; and/or
d. perform the same for the account of Sublessee without thereby waiving such Event of Default, and any reasonable amount paid or expense (including reasonable attorneys' fees), penalty or other liability incurred by Sublessor in connection such performance, together with this Agreement interest at the rate of one and one-half (1 1/2%) percent per month thereon until paid by Sublessee to Sublessor, shall be false or misleading in payable by the Sublessee upon demand as Additional Rent"). Should any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed proceedings be instituted by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation Sublessor hereunder and/or for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the EquipmentSublease Premises and/or the Equipment or for any other relief, Sublessee shall pay a Sublessor's reasonable attorney's fees and court costs. A termination No remedy of Sublessor hereunder shall occur only upon written notice be exclusive of any remedy herein or by Lessor law provided, but each shall be cumulative and in addition to Lessee every other remedy. In addition to any and only as all remedies set forth herein, Sublessor shall have all remedies available to the units of Equipment specified in any such notice. Prime Lessor may, but shall not be required to, sell Equipment under the Prime Lease and at private or public sale, in bulk law or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulativeequity, and any or and all thereof may remedies shall be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (cumulative and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent defaultnon-exclusive.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder indebtedness (collectively "GUARANTORGuarantor") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; or
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessordays.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right (i) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor legal process, to peacefully enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (ii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iii) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, assertion defense or preservation of Lessor's Secured Partys rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted.
(f) Secured Party's rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Waiver Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 1 contract
Samples: Substitution of Equipment and Security Agreement (Friede Goldman International Inc)
Default and Remedies. (a) Lessor may Time is of the essence in writing declare this Agreement in default if: Agreement. The occurrence of any of the following shall be an Event of Default hereunder:
(i) Lessee breaches its obligation to pay rent Default in payment or performance of any of Applicant’s obligations hereunder or under any promissory note or other agreement between Bank and Applicant;
(ii) Default under any security documents securing Applicant’s obligations hereunder, whether executed by Applicant or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; person;
(iii) Lessee breaches Levy or proceeding against any property of its other Applicant or any guarantor of Applicant’s obligations and fails to cure that breach within thirty hereunder (30) days after written notice from Lessor; “Guarantor”);
(iv) Death, dissolution, termination of existence, insolvency or business failure of, appointment of a receiver for any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor part of the property of, assignment for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) benefit of creditors by, commencement of any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor proceeding under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyby or against, or (C) payments due under the lease agreement; (x) there is any dissolutionentry of judgment against, termination or existence, merger, consolidation or change in controlling ownership or Lessee Applicant or any Guarantor;
(v) Any warranty, but representation or statement made or furnished to Bank by Applicant or any Guarantor proves to have been false in any material respect when made or furnished;
(vi) Any event which gives the holder of any debt obligation of Applicant or any Guarantor the right to accelerate its maturity, whether or not such right is exercised;
(vii) Any guaranty of Applicant’s obligations hereunder ceases to be, or is asserted by any person not to include an initial public offering, or any other stock offering, preferred to commonbe, in which the primary purpose is to raise cash equityfull force and effect; or or
(xiviii) there is a Any material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorcondition or management of Applicant or any Guarantor, or if Bank for any reason in good faith, deems itself insecure.
(b) After a defaultUpon the occurrence of any Event of Default and at any time thereafter, Bank at the request its option and in addition to all other rights of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due Bank under this Agreement Agreement, any related agreement and all Schedules. Lessor applicable law, may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges without notice or demand declare the amount for which the Credit was issued and expenses incurred in taking, removing, holding, repairing any other amounts owing hereunder immediately due and selling, leasing or otherwise disposing of Equipmentpayable; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, exercise any and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default secured party under the terms of this or any Uniform Commercial Code and other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementapplicable law.
Appears in 1 contract
Samples: Loan Agreement (Schiff Nutrition International, Inc.)
Default and Remedies. 12.1 Subject to the provisions of Article 9 hereof, the occurrence of any one or more of the following events shall constitute a material default by Tenant under this Lease:
12.1.1 The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of thirty (30) business days after written notice thereof from Landlord to Tenant.
12.1.2 The failure by Tenant to observe or perform any of the material covenants, conditions or provisions of this Lease to be observed or performed by Tenant other than those referenced in Section 12.1.1 hereof, where such failure shall continue for a period of sixty (60) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant's noncompliance is such that more than sixty (60) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said sixty (60) day period and thereafter diligently pursues such cure to completion.
(a) Lessor The making by Tenant of any general arrangement for the benefit of creditors, (b) Tenant's becoming a "debtor" as defined in 11 U.S.C. section 101, unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days after filing, (c) the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located on the Premises or of Tenant's interest under this Lease, where possession is not restored within sixty (60) days, or (d) the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest under this Lease, where such seizure is not discharged within sixty (60) days. In the event that any provision of this Section 12.1.3 is contrary to any applicable Law, such provision shall be of no force or effect.
12.2 Subject to the provisions of Article 9 hereof, in the event of any material default of this Lease by Tenant, Landlord may take any of the following actions:
12.2.1 Terminate Tenant's right to possession of the Premises by any lawful means, in writing declare which case this Agreement in default ifLease and the term hereof shall terminate, and Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including, but not limited to: (ia) Lessee breaches the unpaid rent which had been earned at the time of termination; (b) the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (c) the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (d) any other amount necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to perform its obligation obligations under this Lease.
12.2.2 Maintain Tenant's right to pay possession, in which case this Lease shall continue in effect whether or not Tenant shall have vacated or abandoned the Premises. In such event, Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder.
12.2.3 Pursue any other remedy now or hereafter available to Landlord under the Laws or judicial decisions of the State of California.
12.3 Tenant hereby acknowledges that the late payment by Tenant to Landlord of any installment of rent or any other sum when due and fails hereunder will cause Landlord to cure incur costs not contemplated by this Lease, the breach exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of rent or any other sum due from Tenant hereunder shall not be received by Landlord within ten (10) days; days after such amount shall be due, then Tenant shall pay to Landlord a late charge equal to six percent (ii6%) Lessee breaches of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of such late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, or prevent Landlord from exercising any of its insurance obligations the other rights and remedies granted hereunder.
12.4 Except as expressly provided herein, any amount due to Landlord hereunder that is not paid when due shall bear interest at the greater of (a) ten percent (10%) per annum or (b) five percent (5%) per annum above the discount rate established by the Federal Reserve Bank of San Francisco on advances to member banks under Section 913 or 13(a) of the Federal Reserve Act as in effect on the Rental Commencement Date, from the date due until fully paid. Payment of such interest shall not excuse or cure any default by Tenant under this Lease.
12.5 Notwithstanding any other provision of this Lease, Landlord shall not commence any action or proceeding in which termination of this Lease is sought as a remedy unless Landlord also includes therein a prayer for damages; (iii) Lessee breaches nor shall Landlord allege, in any such action or proceeding, that it should be entitled to terminate this Lease because damages would be an inadequate remedy. Tenant shall conclusively be deemed to have remedied any default upon which such a prayer for termination of its other obligations and fails to cure that breach this Lease is based, if, within thirty (30) days after the entry of a final, non-appealable judgment in such action or proceeding (or, if such action or proceeding is appealable but has not been appealed, then within thirty (30) days following the end of the applicable appeal period), Tenant pays to Landlord the full amount of the damages awarded to Landlord in such action or proceeding. The failure of Tenant to pay to Landlord the full amount of such damages award within such thirty (30) day period shall, subject to the rights of the Project Lender set forth in Article 9 hereof, entitle Landlord to terminate this Lease by giving written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for of such termination to Tenant and to the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorProject Lender.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred 12.6 Except in connection with the enforcementfailure of Tenant to pay a damages award under and within the time period set forth in Section 12.5 hereof, assertionTenant may cure any monetary default hereunder by depositing the amount in controversy (not including claimed consequential, defense special, exemplary or preservation of Lessor's rights and remedies under this Agreementpunitive damages) in escrow with any reputable third party escrow, or if prohibited by lawinterpleading the same, such lesser sum as may be permitted. Waiver which amount shall remain undistributed until final decision by a court of any default shall not be a waiver competent jurisdiction or upon agreement of any other or subsequent defaultthe parties hereto.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Ground Lease (Ce Generation LLC)
Default and Remedies. Debtor shall be deemed in default under the Note and this Note and Security Agreement upon the occurrence of the following, each of which shall be deemed an “Event of Default”:
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation If Debtor shall fail to pay rent or any other sum when due any portion of the Obligations;
(b) If any material portion of the Collateral is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and fails to cure the breach such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) days; (ii) Lessee breaches , or if a judgment or other claim becomes a lien or encumbrance upon any material portion of Debtor’s assets, or if a notice of lien, levy, or assessment is filed of record with respect to any of its insurance obligations under Section 9; Debtor’s assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within ten (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (3010) days after written Debtor receives notice from Lessor; thereof, provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contesting by Debtor;
(ivc) If a proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of Debtor in an involuntary case under any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor applicable bankruptcy, insolvency or other obligor similar law now or hereafter in effect, or for the Lessee's obligations hereunder appointment of a receiver, liquidator, assignee, custodian, trustee ("GUARANTOR"or similar official) becomes insolvent of Debtor or ceases to do business as a going concern; (vi) for any Equipment is illegally used; (vii) if Lessee substantial part of his property, or any Guarantor is a natural personfor the winding-up or liquidation of his affairs, any death and such proceeding shall remain undismissed or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws unstayed and in the event effect for a period of an involuntary petition, the petition is not dismissed, within forty-five (45) consecutive days of or such court shall enter a decree or order granting the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change relief sought in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.proceeding;
(d) Any If Debtor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law nor or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian (or other similar official) of Debtor or for any substantial part of his property, or shall make a general assignment for the benefit of creditors, or shall take any corporate action in furtherance of any of the foregoing; and
(e) If either the Note or this Security Agreement is not, a legal, valid and binding obligation of Debtor enforceable in accordance with its terms. Upon the occurrence of any such Event of Default, the Borrower shall have thirty (30) calendar days in which to cure the default or make full payment on the unpaid principal and accrued interest under the terms Note, plus a penalty fee equal to twenty-five percent (25%) of the then-unpaid principal and accrued interest under the Note. In the event that the Borrower does not cure the default or make full payment under the Note after the initial thirty (30) calendar day cure period, an additional penalty fee equal to twenty-five percent (25%) of the then-unpaid principal and accrued interest under the Note shall be assessed, and Borrower shall have an additional thirty (30) calendar days in which to cure the default or make full payment on the Note. In the event that the Borrower does not cure the default or make full payment of all unpaid principal, accrued interest and penalties after this or second cure period, Secured Parties shall have the right to take full title, right, interest and possession of the Collateral. The Secured Parties shall have the sole discretion as to the sale of the Collateral. The Debtor acknowledges and agrees that in the event that the Debtor defaults, and fails to cure within the two cure periods described above, the Secured Parties will have to expend significant time, money and resources find a buyer, and that the Secured Parties shall be entitled to complete repayment of any other agreement between Lessor and Lessee may be declared all costs, professional fees and expenses of any nature incurred by Lessor a default the Secured Parties, including, but not limited to the reasonable value of their time and effort incurred in selling the Collateral to recoup the amounts owed to them. Following the complete satisfaction of all amounts due to the Secured Parties under the Note and this Note and any such other agreementSecurity Agreement, the Secured Parties will return the excess Collateral and proceeds from the sale of the Collateral to the Debtor, if any.
Appears in 1 contract
Samples: Note and Security Agreement (Implant Sciences Corp)
Default and Remedies. (a) Lessor may in writing declare The following shall be deemed to be events of default by Tenant under this Agreement in default if: Lease:
(i1) Lessee breaches its obligation Tenant shall fail to pay rent any installment of the Rent herein reserved when due, or any other sum payment or reimbursement to Landlord required herein when due due, and fails such failure shall continue for a period of ten (10) days after receipt of written notice from Landlord; provided, however, that an event of default will occur without any obligation of Landlord to cure deliver any notice if Landlord has given Tenant written notice under this subparagraph on two (2) or more occasions during the breach twelve (12) month period preceding the current failure by Tenant to timely pay Rent (though Tenant in such instances is granted a five (5) day grace period from the date upon which the subject payment was due).
(2) Tenant abandons the Leased Premises.
(3) Tenant or any guarantor of Tenant's obligations hereunder shall file a petition or be adjudged bankrupt or insolvent under any applicable federal or state bankruptcy or insolvency law, or admit that it cannot meet its financial obligations as they become due; or a receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or such guarantor; or Tenant or any guarantor of Tenant's obligations hereunder shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors; or
(4) Tenant shall fail to discharge or bond around to Landlord's satisfaction any lien filed against the Leased Premises, or any portion thereof, in violation of Article 40 hereof, within ten (10) daysdays after receiving notice thereof.
(5) Tenant shall fail to comply with any other term, provision or covenant of this Lease, other than the payment of Rent; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its and such other obligations and fails to cure that breach failure is not cured within thirty (30) days after of receipt of written notice from Lessor; Landlord specifying the default;
(iv6) any representation or warranty made by Lessee in connection with this Agreement Any of the representations and warranties of Tenant set forth herein shall be false or misleading untrue in any material respect; (v) Lessee respect on the date of this Lease or at any guarantor or other obligor for time during the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorTerm.
(b) After a defaultUpon the occurrence of any event of default set forth in this Lease, at Landlord shall have the request option to pursue any one or more of Lessorthe remedies set forth herein without any additional notice or demand.
(1) Without declaring the Lease terminated, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully Landlord may enter any premises where any Equipment may be upon and take possession of the EquipmentLeased Premises, by picking or changing locks if necessary, and lock out, expel or remove Tenant and any other person who may be occupying all or any part of the Leased Premises without being liable for any claim for damages, and relet the Leased Premises on behalf of Tenant and receive the rent derived by reason of the reletting. Lessee Tenant agrees to pay Landlord on demand any deficiency that may arise by reason of any reletting of the Leased Premises, further, Tenant agrees to reimburse Landlord for any expenditures made by it in order to relet the Leased Premises, including, but not limited to, leasing commissions, moving allowances, lease incentives, remodeling and repair costs or in performing any obligations of Tenant hereunder. Tenant agrees to reimburse Landlord on demand for any reasonable expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease; further, Tenant agrees that Landlord shall not be liable for any damages resulting to Tenant from effecting compliance with Tenant's obligations under this Lease caused by the negligence of Landlord or otherwise.
(2) Landlord may terminate this Lease, in which event Tenant shall immediately surrender the Leased Premises to Landlord, and if Tenant fails to surrender the Leased Premises, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in Rent, enter upon and take possession of the Leased Premises, by picking or changing locks if necessary, and lock out, expel or remove Tenant and any other person who may be occupying all or any part of the Leased Premises without being liable for any claim for damages. Tenant agrees to pay on demand the amount of all loss and damage which Landlord may suffer by reason of the termination of this Lease under this section, including without limitation, loss and damage due to Lessor without further demand the failure of Tenant to maintain and or repair the Leased Premises as liquidated required hereunder and/or due to the inability to relet the Leased Premises on terms satisfactory to Landlord or otherwise, and any reasonable expenditures made by Landlord in order to relet the Leased Premises, including, but not limited to, leasing commissions, moving allowances, lease incentives, and remodeling and repair costs. In addition, upon termination Landlord may collect from Tenant, as damages for loss of a bargain and not as a penalty, the Stipulated Loss Value present value (using a discount rate of seven percent (7%) of all future Rents required to be paid under this Lease (had it not been terminated) from the date Landlord terminates the Lease until the expiration of the Equipment (calculated as Term less the fair market rental value of the rent payment date prior Leased Premises over such term. Notwithstanding anything contained in this Lease to the declaration contrary, this Lease may be terminated by Landlord only by mailing or delivering written notice of defaultsuch termination to Tenant, and no other act or omission of Landlord shall be construed as a termination of this Lease.
(3) In the event that Landlord exercises its remedy to lock out Tenant in accordance with any provision of this Lease, Tenant agrees that no notice shall be required to be posted by Landlord on any door to the Leased Premises (or elsewhere) disclosing the reason for such action or any other information, and that Landlord shall not be obligated to provide a key to the changed lock to Tenant unless Tenant shall have first:
(I) brought current all payments due to Landlord under this Lease (unless Landlord has permanently repossessed the Leased Premises or terminated this Lease, in which event payment of all past due amounts shall not obligate Landlord to provide a key);
(II) fully cured and remedied to Landlord's satisfaction all other defaults of Tenant under this Lease (unless Tenant has abandoned or vacated the Leased Premises, in which event Landlord shall not be obligated to provide the new key to Tenant under any circumstances); and
(III) provided Landlord with additional security deposit and assurances satisfactory to Landlord that Tenant intends to and is able to meet and comply with its future obligations under this Lease, both monetary and nonmonetary. Landlord may, upon written request by Tenant, at Landlord's convenience, upon receipt by Landlord of an amount necessary to reimburse itself for time and expense in providing such service, and upon Tenant's execution and delivery of such waivers and indemnifications as Landlord may require at Landlord's option either:
(i) escort Tenant or its specifically authorized employees or agents to the Leased Premises to retrieve personal belongings of Tenant's employees and property of Tenant that is not subject to a security interest provided in this Lease, or
(ii) obtain from Tenant a list of such property and arrange for such items to be removed from the Leased Premises and made available to Tenant at such place at such time as Landlord may designate, provided however, that if Landlord elects option (ii), then Tenant shall be required to pay in cash in advance to Landlord the estimated costs that Landlord may incur upon moving and storage charges theretofore incurred by Landlord with respect to such property.
(4) THE PROVISIONS OF THIS ARTICLE 15 OVERRIDE AND SUPERSEDE ARTICLE 93.002 OF THE TEXAS PROPERTY CODE TO THE EXTENT OF ANY CONFLICT.
(5) Tenant hereby expressly waives any and all rents rights of redemption granted by or under any present or future Applicable Laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Leased Premises by reason of the violation by Tenant of any of the covenants and conditions of this Lease or otherwise.
(6) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other sums then due right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute. In addition to the other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by Applicable Laws, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy now or hereafter allowed to Landlord at law or in equity. Tenant shall indemnify and hold Landlord harmless from any and all actual costs, expenses (including reasonable attorneys' fees), claims and causes of action arising from or in connection with any default by Tenant under this Agreement Lease.
(7) In the event that Tenant or any guarantor of Tenant's obligations hereunder is the subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or similar proceeding, federal or state, voluntary or involuntary, under any present or future law or act, Landlord is entitled to the automatic and all Schedules. Lessor may terminate this Agreement absolute lifting of any automatic stay as to the enforcement of its remedies under this Lease, including specifically the stay imposed by Section 362 of the United States Federal Bankruptcy Code, as amended. Tenant hereby consents to the immediate lifting of any such automatic stay, and will not contest any motion by Landlord to lift such stay. Tenant expressly acknowledges that the Leased Premises is not now and will never be necessary to any plan or reorganization of any type.
(8) To the extent required under Applicable Laws, Landlord agrees to use reasonable efforts to mitigate any of its damages arising from the occurrence of an event of default by Tenant involving Tenant's abandonment of the Leased Premises. Tenant agrees that this requirement to use reasonable efforts will have been satisfied by Landlord: (i) notifying its leasing agent of the availability of the Leased Premises for rent, and (ii) showing the Leased Premises to prospective tenants who request to see the Leased Premises and to prospective tenants referred to Landlord by Tenant. In no event shall Landlord be deemed to have failed to mitigate its damages if Landlord chooses to lease to a prospective tenant some or all of other space in other property owned or controlled by Landlord, rather than some or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private Leased Premises or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part if Landlord rejects a proposed new tenant because of the Equipment. Lessor may credit, reputation or proposed use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied said proposed Tenant is not satisfactory to Landlord in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveits sole discretion.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral,
(iii) Debtor breaches any of its insurance obligations under Section 9; 4.
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party.
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness (collectively "GUARANTOR") dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; .
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors; or
(xi) Debtor on any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days.
(xii) Debtor's improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of sale. Lessor Debtor's premises and may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's such Collateral on such premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied first, to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys' fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of LessorSecured Party's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default Debtor further agrees that such fees and costs shall not be a waiver of any other or subsequent defaultconstitute Indebtedness.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 99 and fails to cure any breach within thirty (30) after written notification of same from an insurer; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; : (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or Or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days of the filing date; (ix) Lessee default defaults under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreementagreements; (x) there is any dissolution, termination or of existence, merger, consolidation or change in controlling ownership or of Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition; or (xii) Guarantor breaches any subsection under Section 7. Default and Remedies in its Master Security Agreement with General Electric Capital Corporation dated July 15, 2003 and the Amendment to the Master Security Agreement dated July 31, 2003, and fails to cure the breach within thirty (30) days of its occurrence. The default declaration shall apply to all Schedules unless specifically excepted by Lessor, and any default under the terms of this or any other agreement between Lessor and Lessee and Guarantor may be declared by Lessor a default under this and any such other agreement.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. 10(a), Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penaltypenally, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. , Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, to sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in takingraking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplussurplus shall be retained by Lessor. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.,
Appears in 1 contract
Samples: Master Lease Agreement (Chromavision Medical Systems Inc)
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default and each of the other Debt Documents if: :
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due and fails to cure any installment or other amount due or coming due under any of the breach within ten (10) days; Debt Documents;
(ii) Lessee Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations obligation under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; ;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breeches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) any Equipment is illegally used; (vii) if Lessee If Debtor or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) days days; or
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorCollateral.
(b) After a If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the request lower of Lessoreighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
(c) After default, Lessee Secured Party shall comply have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully or without legal process, enter any premises where any Equipment the Collateral may be and take possession of and remove the Equipment. Lessee shall immediately pay Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and have the right to Lessor without further demand as liquidated damages for loss bid and purchase at said sale, or (iv) lease or otherwise dispose of a bargain and not as a penalty, the Stipulated Loss Value all or part of the Equipment (calculated as of the rent payment date prior Collateral, applying proceeds from such disposition to the declaration of obligations then in default). If requested by Secured Party, Debtor shall promptly assemble the Collateral and all rents and other sums then due under this Agreement and all Schedulesmake it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may terminate this Agreement as to also render any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present Collateral unusable at the place of saleDebtor’s designated by Secured Party which is reasonably convenient to both parties. Lessor Secured Party may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for also render any or all of the purposes stated above Collateral unusable at the Debtor’s premises and may dispose of such Collateral on such premises without liability for rent, rent or costs, damages . Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or otherwise. The proceeds the time after which any private sale or other intended disposition of sale, the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition, if any, disposition shall be applied applied; first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in the following order default; third, to discharge any other Indebtedness of priorities: (i) Debtor to pay all of Lessor's costsSecured Party, charges and whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in taking, removing, holding, repairing paying or settling liens and selling, leasing or otherwise disposing of Equipmentclaims against the Collateral; then (ii) to the extent not previously paid by Lesseeand lastly, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to LesseeDebtor, if there exists any surplus. Lessee Debtor shall immediately pay remain fully liable for any deficiency in (i) and (ii) abovedeficiency.
(ce) The foregoing remedies are cumulative, Debtor agrees to pay all reasonable attorneys’ fees and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees costs incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any default right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any other right or subsequent defaultremedy on any future occasion.
(dg) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementDEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Appears in 1 contract
Samples: Master Security Agreement (Inspire Pharmaceuticals Inc)
Default and Remedies. (a) Lessor may 12.1 The Purchaser shall be deemed to be in writing declare default under this Agreement in default if: (ieach and every of the following events, namely:
a) Lessee breaches its obligation to pay rent upon the non-payment of all or any portion of the Purchase Price, or any other sum due herein when due due;
b) upon a breach of, or failure in the performance or observance of any covenant, restriction, stipulation or provision of this Agreement to be performed and/or observed by the Purchaser;
12.3 In the event the Purchaser is in default under this Agreement, the Vendor may give written notice of such default to the Purchaser and fails to in the event the Purchaser does not rectify and cure the breach such default within ten (10) days; (ii) Lessee breaches any days of its insurance obligations under Section 9; (iii) Lessee breaches any the giving of its other obligations such notice, the Vendor may terminate this Agreement by giving notice of termination to the Purchaser and fails to cure that breach within thirty (30) days after written if such notice from Lessor; (iv) any representation or warranty made by Lessee in connection with of termination is given, this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for at an end and all deposit monies shall be forfeited by the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed Purchaser and retained by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petitionVendor, the petition is not dismissedVendor shall have no further rights, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, obligations or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior liabilities to the declaration of default), and all rents and other sums then due under Purchaser pursuant to this Agreement and the Purchaser shall be liable to the Vendor for all Schedulesdamages suffered or incurred by the Vendor. Lessor Notwithstanding the foregoing no notice of default shall be required to be given by the Vendor to the Purchaser if the Purchaser defaults in completing the within transaction. If the Purchaser defaults in completing the within transaction the Vendor may terminate this Agreement as to any or all by giving notice of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units Purchaser and if such notice of Equipment specified termination is given, this Agreement shall be at an end and all deposit monies shall be forfeited by the Purchaser and retained by the Vendor, the Vendor shall have no further rights, obligations or liabilities to the Purchaser pursuant to this Agreement and the Purchaser shall be liable to the Vendor for all damages suffered or incurred by the Vendor.
12.4 It is understood and agreed that the rights contained in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having this Paragraph on the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies Vendor are cumulative, and any or all thereof may be exercised instead of or in addition to each any other or any remedies rights which the Vendor may have at law, in equity, equity or under statute. Lessee waives notice any other provision of sale or other disposition (this Agreement and the time and place thereof), and Vendor expressly has the manner and place right to exercise all or any one or more of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred the rights contained in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, at law or if prohibited by in equity, without exercising at such time the remainder of such right or rights and without prejudice to the subsequent right of the Vendor to exercise any remaining right or rights at law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other in equity or subsequent defaultin this Agreement.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Default and Remedies. (a) Lessor may in writing declare a. The following shall constitute a default under this Agreement in default ifAgreement: (i) Lessee breaches its obligation breach of any of the Subgrantee's covenants, agreements, or certifications in this Agreement, including the expenditure of WAP Funds and Administrative Funds for any use other than for the purposes set out in the Program Guidelines; or (ii) demand by DOE upon the Department for the repayment of WAP Funds for any action or inaction of the Subgrantee.
b. Upon occurrence of any default, the Department shall have the right to pay rent or any other sum when due and fails terminate this Agreement by written notice to the Subgrantee. Subgrantee shall have 30 days from the date the Department’s notice is postmarked to cure the breach within ten default. After the conclusion of the 30-day period, if Subgrantee has not cured or commenced to cure the default to the satisfaction of the Department, the Department may at its option immediately terminate this Agreement. In the event of termination by the Department:
(10i) days; Subgrantee’s authority to request reimbursement shall cease and the Subgrantee shall have no right, title, or interest in or to any of the WAP Funds not disbursed;
(ii) Lessee breaches the Department may demand repayment from the Subgrantee of any of its insurance obligations under Section 9amounts the Department determines were not expended in accordance with this Agreement; and
(iii) Lessee breaches any the Department, at its discretion, may demand repayment of its other obligations and fails all WAP Funds distributed to cure that breach within thirty the Subgrantee.
c. Notwithstanding Section 6.a-b. above, the Department may suspend the Subgrantee from the Program immediately upon making a determination that: (301) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases not to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural personso would pose an imminent danger to life, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of propertyhealth, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equityproperty; or (xi2) there the performance by the Subgrantee is a material adverse change not in compliance with the Lessee's financial conditionProgram Guidelines. The default declaration Department will notify the Subgrantee of the date of suspension by certified mail. The notice shall apply include the grounds for the suspension and the opportunity for the Subgrantee to all Schedules unless specifically excepted by Lessorrequest a conference with the Department. If the Department receives a request from the Subgrantee for a conference within fifteen (15) days from the mailing date of the notice of the suspension, the Department will schedule a conference with the Subgrantee. After the conference, the Department will promptly either: terminate the Agreement; continue the suspension; or reinstate the Subgrantee.
(b) After a default, at d. In addition to the request of Lessor, Lessee shall comply with the provisions of Section 9(a) rights and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penaltyremedies contained in this Agreement, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior Department may at any time proceed to protect and enforce all rights available to the declaration of default)Department by suit in equity, and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies action at law, in equityor by any other appropriate proceedings, or under statute. Lessee waives notice all of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's which rights and remedies under shall survive the termination of this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. 12.1 Any one of the following shall constitute an “Event of Default” hereunder:
(a) Lessor may Client shall become insolvent or commit an act of bankruptcy or make an assignment or bulk sale of its assets;
(b) Client shall admit in writing declare or verbally its inability to pay its debts as they become due;
(c) any proceedings are taken with respect to a compromise or arrangement with any one or more of Client’s creditors, or to have Client declared bankrupt or wound up, or to have a receiver or receiver and manager appointed with respect to Client or any of Client’s assets;
(d) receipt by Client of a notice of intention under section 244 of the Bankruptcy and Insolvency Act (Canada);
(e) Client is found to be insolvent or bankrupt by a court of competent jurisdiction or makes a proposal to its creditors under the Bankruptcy and Insolvency Act (Canada), seeks relief under the Companies' Creditors Arrangement Act (Canada), the Winding Up Act (Canada) or any other bankruptcy, insolvency or analogous law in Canada, files a petition or proposal to take advantage of any act of insolvency, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, custodian or other person with similar powers over all or any substantial portion of its assets, files a petition or otherwise commences any proceeding seeking any reorganization, arrangement, composition or readjustment under any applicable bankruptcy, insolvency, moratorium, reorganization or other similar law affecting creditor's rights or consents to, or acquiesces in, the filing of such a petition or if a petition in bankruptcy is filed or presented against Client; or
(f) any proceedings with respect to Client are commenced under the Companies' Creditors Arrangement Act (Canada).
(g) Client terminates, discontinues or suspends the operation of its business as carried on at the date of this Agreement Agreement;
(h) any Person takes possession of any property of Client by way of or in default if: contemplation of enforcement of security, or a distress or execution or similar process is levied or enforced against any property of Client;
(i) Lessee breaches a default occurs under any of the Security Documents;
(j) Client is in default of its obligation to pay rent or obligations with any other sum when due and fails to cure creditor;
(k) any change in the breach within ten legal or beneficial ownership or control of Client occurs without BFI’s prior written consent;
(10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor; (ivl) any representation or warranty made by Lessee Client herein or in any document, financial statement or certificate furnished or to be furnished by Client in connection with this Agreement shall be false herewith or misleading in any material respect; Offer shall prove to be incorrect;
(vm) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural personin BFI’s sole and absolute opinion, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in Client’s management, financial condition or business prospects or Client’s ability to pay any amounts owing to BFI has been, or threatens to be, impaired, worsened or diminished;
(n) Client fails to pay or reimburse BFI, as the Lessee's case may be, any monetary Obligations as and when the same shall become due;
(o) Client fails to perform any of its Obligations as an when the same are required to be performed; or
(p) any report, financial condition. The default declaration statements, list of accounts receivable, statement or other information furnished by or on behalf of Client to BFI under or pursuant to or in connection with this Agreement or any Offer shall apply be false, erroneous or misleading in any respect.
12.2 In addition to any other remedies available to BFI under this Agreement or any other agreements with Client or applicable law, upon and after the occurrence of an Event of Default, BFI may do any one or more of the following without notice or demand to Client, except as expressly required under this Agreement:
(a) enforce against Client immediate payment of all Schedules unless specifically excepted by Lessor.of its Obligations to BFI;
(b) After require Client to assemble all deeds, documents, writings, papers, books of account, other books, electronic and magnetic records and other records evidencing, recording or appertaining to Assigned Accounts and Corresponding Rights and make them available to BFI at a defaultplace designated by BFI;
(c) take control in any manner of any reclaimed, at rejected, returned, replevied, stopped in transit or redeposited goods relating to any Assigned Account;
(d) enter the request premises of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be Client and take possession of the Equipment. Lessee shall immediately pay records pertaining to Lessor without further demand as liquidated damages for loss the Assigned Accounts and Corresponding Rights including, to the extent not in BFI’s possession, the Account Records;
(e) enforce the Security Documents and exercise all or any of its rights under the Security Documents and the rights and remedies of a bargain and not secured party under the PPSA or as a penaltycreditor under any other applicable law or at equity;
(f) grant extensions, compromise claims and settle Assigned Accounts for less than face value, without prior notice to Client;
(g) return any surplus realized to Client after the Stipulated Loss Value Assigned Accounts have been paid in full and all of the Equipment Obligations of Client have been fully performed and paid or otherwise satisfied;
(calculated as of h) if the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any Assigned Accounts are not paid in full or all of the Equipment. A termination Obligations of Client are not fully performed and paid or otherwise satisfied, hold Client liable for any deficiency;
(i) require, by instrument in writing, that Client appoint, or institute proceedings in any court of competent jurisdiction for the appointment of, any Person (including BFI) or Persons as are acceptable to BFI to monitor the activities of Client generally and to verify compliance by Client of its obligations hereunder (a “Monitor”);
(j) charge interest on any monetary Obligations outstanding at the highest rate permissible by law until such Obligations are paid in full, which interest shall occur only upon written notice by Lessor to Lessee become part of and only as added to the units Obligations.
12.3 All rights, remedies and powers granted to BFI herein are cumulative and may be exercised concurrently or separately from time to time with such other rights as BFI may have. These rights afforded BFI shall be in addition to any rights or remedies provided for elsewhere in this Agreement or available in law or equity.
12.4 In the event of Equipment specified in any such notice. Lessor maydefault, but BFI shall not be required to, sell Equipment at private or public sale, be under any obligation to marshal any assets in bulk or in parcels, with or without notice, and without having the Equipment present at the place favour of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other Client or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this guarantor or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementparty.
Appears in 1 contract
Samples: Master Factoring Agreement (Methes Energies International LTD)
Default and Remedies. (a) Lessor Secured Party may in writing declare this Agreement in default if: (i) Lessee Debtor breaches its obligation to pay rent monthly installments or any other sum owing to Secured Party (under this Agreement or otherwise) when due and fails to cure the breach within ten (10) days; (ii) Lessee Debtor breaches any of its insurance obligations under Section 98 above; (iii) Lessee Debtor assigns any of its interests in this Agreement or in the Equipment without the Secured Party’s prior written consent; (iv) Debtor breaches any of its other obligations under this Agreement and fails to cure that breach within thirty (30) 30 days after written notice from LessorSecured Party; (ivv) any representation or warranty made by Lessee Debtor in connection with this Agreement shall be incorrect, false or misleading in any material respect; (vvi) Lessee Debtor or any guarantor or other obligor for the Lessee's Debtor’s obligations hereunder ("GUARANTOR"“Guarantor”) becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee Debtor or any Guarantor is a natural person, any death or incompetency of Lessee Debtor or such Guarantor; (viii) a petition is filed by or against Lessee Debtor or any Guarantor under any bankruptcy or insolvency laws (in which event, it would be an immediate event of default) and in the event of an involuntary petition, the petition is not dismissed, dismissed within forty-five (45) 45 days of the filing date; (ix) Lessee any material adverse change occurs in Debtor’s financial condition or business operations (or of any Guarantor) or any material change occurs in the ownership of Debtor (or of any Guarantor), or (x) Debtor improperly files an amendment or termination statement relating to a filed financing statement describing the Equipment. Debtor’s default under a Schedule or a default by Debtor, any principal of Debtor or any entity managed or controlled by Debtor or by any principal of Debtor under any other material obligation for (A) borrowed moneyagreement or contract with Secured Party, (B) the deferred purchase price will at Secured Parties sole option, constitute a default of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to this Agreement and all Schedules unless specifically excepted by Lessorentered into pursuant to this Agreement.
(b) After a defaultUpon the occurrence of an event of default hereunder, at Secured Party shall have the request non-exclusive option to: (i) declare all sums due and to become due for the full term of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written Schedules immediately due and payable; (ii) declare all other amount(s) due Secured Party hereunder immediately due and payable; (iii) collect from Debtor, on all monies due but unpaid for more than ten days, a late charge of five cents per dollar on, and in addition to, the amount of all such monies, but not exceeding the lawful maximum; (iv) take possession of the Equipment and remove same from its existing location(s) without notice to or consent of Debtor; and store and/or dispose (by Lessor public sale or otherwise) of the Equipment at its then existing location(s) at no charge to Lessee Secured Party; (v) sell or lease any or all items of Equipment at public or private sale or lease at such time or times as Secured Party may determine and only as if notice thereof is required by law, any notice in writing of any such sale or lease by Secured Party to Debtor not less than ten days prior to the units of Equipment specified in any such notice. Lessor may, but date thereof shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, constitute reasonable notice thereof to Debtor; (vi) otherwise dispose of of, hold, use, operate, or keep idle such Equipment, all as Secured Party, in its sole discretion, may determine; and (vii) assert any other remedies available to Secured Party at law or part in equity (including, without limitation, under the Uniform Commercial Code).
(c) After deducting all expenses of retaking, repairing, holding, transporting, selling and/or reletting the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any , the net proceeds (if any) from such sale or all of the purposes stated above without liability for rent, costs, damages or otherwisereletting by Secured Party shall be applied against Debtor’s obligation hereunder. The proceeds of any sale, lease re-lease, or other disposition, disposition (if any, ) shall be applied in the following order of priorities: (i) first, to pay all of Lessor's Secured Party’s costs, charges and expenses incurred in taking, removing, holding, repairing and repairing, selling, re-leasing or otherwise and disposing of the Equipment; then (ii) second, to the extent not previously paid by Lessee, Debtor (or by a Guarantor of Debtor’s obligations hereunder) to pay Lessor Secured Party all sums amounts due from Lessee under this AgreementDebtor hereunder; then and (iii) lastly, any surplus shall be delivered to reimburse Debtor. Secured Party shall have the right to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) seek a deficiency from Debtor notwithstanding Secured Party’s repossession or abandonment of the Equipment, or Secured Party’s sale or reletting the Equipment to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovea third party.
(cd) The foregoing remedies are cumulativecumulative and nonexclusive of any other rights and remedies that Debtor may have under any other agreement or at law or in equity and may be exercised individually or concurrently, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee Debtor waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee Debtor shall pay Lessor's Secured Party’s actual attorney's fees ’s fees, agency fees, collection costs and expenses and any other costs and expenses incurred in connection with the enforcement, assertion, defense or preservation of Lessor's Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Master Security Agreement (IPC the Hospitalist Company, Inc.)
Default and Remedies. 24.01 Each of the following shall constitute an event of default by Lessee or its parent company, successor company or related company(ies):
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee breaches its obligation shall fail to pay any rent or any other sum when due as provided for in this Lease and fails to cure the breach within such failure shall continue for a period of ten (10) days; calendar days after receipt by Lessee of written notice thereof.
(iib) Lessee breaches shall neglect or fail to perform or observe any of the terms, provisions, conditions or covenants herein contained, and if such neglect or failure should continue for a period of thirty (30) calendar days after receipt by Lessee of written notice of same, or if more than thirty (30) calendar days shall be required because of the nature of the default, if Lessee shall fail within said thirty (30) calendar day period to commence and thereafter diligently proceed to cure such default.
(c) Lessee shall become insolvent; take the benefit of any present or future insolvency statute; make a general assignment for the benefit of creditors; file a voluntary petition in bankruptcy or a petition or answer seeking a reorganization or the readjustment of its indebtedness under the federal bankruptcy laws, or under any other law or statute of the United States or of any state thereof; or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property.
(d) An Order of Relief shall be entered, at the request of Lessee or any of its insurance obligations creditors, under Section 9; federal bankruptcy, reorganization laws or any law or statute of the United States or any state thereof.
(iiie) A petition under any part of the federal bankruptcy laws, or an action under any present or future insolvency law or statute, shall be filed against Lessee breaches any of its other obligations and fails to cure that breach shall not be dismissed within thirty (30) calendar days after written notice from Lessor; the filing thereof.
(ivf) Pursuant to, or under the authority of, any representation legislative act, resolution, rule, or warranty made by any court, governmental, agency or board order or decree or officer, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of Lessee and such possession or control shall continue in effect for a period of fifteen (15) calendar days.
(g) Lessee shall become a corporation in dissolution or voluntarily or involuntarily forfeit its corporate charter
(h) By operations of law or otherwise, any other person, firm, corporation or other entity, in connection with this Agreement shall be false or misleading in as a result of any material respect; (v) Lessee or any guarantor bankruptcy, insolvency, trusteeship, liquidation or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent proceeding or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency occurrence described in Paragraphs c through g of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessorthis Section 24.01.
(bi) After a default, Lessee shall voluntarily discontinue its operations at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises Airport for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.ninety
Appears in 1 contract
Samples: Fixed Base Operator Land Lease and Development Agreement
Default and Remedies. (a) Lessor may Debtor shall be in writing declare default under this Agreement in default if: and each of the other Debt Documents upon the occurrence and during the continuance of any of the following events or circumstances (each an “Event of Default”):
(i) Lessee Debtor breaches its obligation to pay rent or any other sum when due any installment or other amount due or coming due under any of the Debt Documents and fails to cure the breach within ten three (103) days; ;
(ii) Lessee Debtor, without the prior written consent of Secured Party, (A) attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral, except for any sale or disposition of inventory in the ordinary course of business, or the sale of equipment or other assets which are determined by the Debtor in good faith to be obsolete or no longer used or useful in Debtor’s business or (B) breaches any of its obligations under Sections 2(n), (o), (p), (q), (r) or (s) or 3(a) hereof;
(iii) Debtor breaches any of its insurance obligations under Section 9; 4;
(iiiiv) Lessee Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty ten (3010) days after written notice from Lessor; Secured Party;
(ivv) any Any warranty, representation or warranty statement made by Lessee Debtor in any of the Debt Documents or otherwise in connection with this Agreement any of the Indebtedness shall be false or misleading in any material respect; respect when made;
(vvi) Lessee Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise and such attachment, seizure or levy is not removed in ten (10) days or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) If there is a material breach or an event of default by Debtor under any other agreement between Debtor and Secured Party, which remains unwaived or uncured beyond the expiration of any applicable notice and/or grace period;
(viii) Debtor, any significant Subsidiary, or any guarantor or other obligor for any of the Lessee's obligations hereunder Indebtedness ("GUARANTOR"collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern; ;
(viix) If Debtor, any Equipment is illegally used; (vii) if Lessee Subsidiary, or any Guarantor is a natural person, Debtor or any death such Guarantor dies or incompetency becomes incompetent;
(x) A receiver is appointed for all or of Lessee any material part of the property of Debtor or any Subsidiary, or Debtor or any Subsidiary makes any assignment for the benefit of creditors.
(xi) Debtor, any Subsidiary or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such Guarantor; (viii) a petition is filed by or against Lessee Debtor, any Subsidiary or any Guarantor and is not dismissed within sixty (60) days;
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiii) There is a material adverse change in the Debtor’s financial condition and operations as determined in the commercially reasonable judgment of Secured Party; provided, however, that such a change will not be deemed to have occurred solely because of the occurrence of any of the following individual events: (a) negative responses from regulatory agencies; (b) negative clinical trial results; (c) a low cash position; (d) fluctuations in revenues; or (e) continuing losses from operations; provided, further, however, that (I) the occurrence of any of (a), (b) or (c) may form the basis on which the Secured Party reasonably determines that a material adverse change has occurred if any such event occurs in combination with one or more of the others of (a), (b) and (c) and (II) the occurrence of any of (a), (b), and (c), may form the basis on which the Secured Party reasonably determines that a material adverse change has occurred if any such event occurs with other adverse changes in Debtor’s financial condition;
(xiv) Any Guarantor revokes or attempts to revoke its guaranty of any of the Indebtedness or fails to observe or perform any covenant, condition or agreement to be performed under any bankruptcy guaranty or insolvency laws and in the event of an involuntary petition, the petition other related document to which it is not dismissed, within forty-five a party;
(45xv) days of the filing date; (ix) Lessee default Debtor defaults under any other material obligation in excess of $100,000 for (A) borrowed money, (B) the deferred purchase price of property, property or (C) payments due under the any lease agreement; ;
(xxvi) there is At any dissolution, termination or existence, merger, consolidation or time during the term of this Agreement Debtor experiences a change in controlling ownership control such that any person or Lessee entity acquires either more than 50% of the voting stock of Debtor or any Guarantor, but not to include an initial public offering, sells all or any other stock offering, preferred to commonsubstantially all of its assets, in which either case, without Secured Party’s prior written consent (a “Change in Control”). Notwithstanding the primary purpose is to raise cash equity; or (xi) foregoing, it shall not be an Event of Default and no prior written consent shall be required if there is a material adverse change Change in Control in which Secured Party acquires more than 50% of the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.voting stock of Debtor; or
(bxvii) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter Debtor or any premises where Guarantor or other obligor for any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of Indebtedness sells, licenses, sublicenses, transfers, assigns, mortgages, pledges, leases, grants a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to security interest in or encumbers any or all of the EquipmentDebtor’s Intellectual Property now existing or hereafter acquired, except for Permitted Liens as defined in subsection (k) of Section 2. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels“Intellectual Property” shall, with respect to Debtor or without noticeany Subsidiary, and without having be used as defined in Collateral Schedule No. 1. For purposes of this paragraph (xvii) only, licenses, sublicenses or marketing rights granted by the Equipment present at the place Debtor of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, its Intellectual Property pursuant to Section 2(m) shall be applied in excluded from the following order definition of priorities: Intellectual Property. Debtor shall provide Secured Party with a listing of licenses, sublicenses and marketing rights granted to third parties within ten (i10) to pay all days of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing receipt of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) abovewritten request.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may in writing declare this Agreement in default if: Each of the following acts or omissions of Tenant or occurrences shall constitute and "Event of Default":
(i) Lessee breaches its obligation Failure or refusal by Tenant to timely pay rent Rent or any other sum when due and fails payments hereunder within two (2) business days following written notice to cure the breach within ten (10) days; Tenant of such failure.
(ii) Lessee breaches Failure to perform or observe any other covenant or condition of its insurance obligations under Section 9; (iii) Lessee breaches any this Lease by Tenant to be performed or observed prior to the expiration of its other obligations and fails to cure that breach within a period of thirty (30) days after following written notice from Lessor; to Tenant specifying with particularity such failure (iv) any representation or warranty made plus an additional reasonable period as may be required by Lessee in connection with this Agreement Tenant to cure such default if Tenant shall diligently pursue the cure of such default until the same shall be false cured).
(iii) The filing or misleading in execution or occurrence of any material respect; (v) Lessee of the following with respect to either Tenant or any guarantor of this Lease: a petition in bankruptcy or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed solvency proceeding by or against Lessee them; or any Guarantor petition or answer seeking relief under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days provision of the filing date; (ix) Lessee default under any Bankruptcy Code or an assignment for the benefit of creditors or composition: or a petition or other material obligation proceeding by or against them for (A) borrowed moneythe appointment of a trustee, (B) the deferred purchase price receiver or liquidator of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee them or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equityof their property; or (xi) there is a material adverse change in proceeding by any governmental authority for the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessordissolution or liquidation of them.
(b) After a defaultThis Lease and the Term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, Landlord may, at its option, in addition to till other rights and remedies given hereunder or by law or equity, do any one or more of the request following:
(i) Terminate this Lease, in which event Tenant shall immediately surrender possession of Lessor, Lessee shall comply with the provisions of Section 9(aLeased Premises to Landlord.
(ii) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be Enter upon and take possession of the EquipmentLeased Premises and expel or remove Tenant and any other occupant therefrom, with or without terminating the Lease.
(iii) Change or alter locks and other security devices at the Leased Premises prohibiting entry into the Leased Premises and deny Tenants access thereto. Lessee In connection with such change or alteration, of locks. Landlord shall immediately pay have no obligation to Lessor advise Tenant of the change of locks other than to provide written notice at the Demised Premises of the person Tenant may contact, during normal business hours for the Leased Premises, to acquire additional information. Furthermore, Tenant waives all rights under Section 91 of the Texas Property Code, to which it is otherwise entitled.
(iv) Perform any action required to be performed by Tenant hereunder.
(c) Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance or surrender of the Leased Premises by Tenant, whether by agreement or by operation of the law, it being understood that such surrender can he affected only by the written agreement of Landlord and Tenant. No such alteration of security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others at the Leased Premises shall be deemed unauthorized or constitute a conversion. Tenant hereby consenting, after an Event of Default, to the aforesaid exercise of dominion over Tenant's property within the Building. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of Landlord's compliance with distress warrant, forcible detainer proceeding, sequestration proceedings, or other legal process. Tenant agrees that any re-entry by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without further demand the necessity for any legal proceedings, as liquidated Landlord may elect, and Landlord shall not be liable in trespass or otherwise.
(d) In the event Landlord elects to terminate the Lease by reason of an Event of Default. Then, notwithstanding such termination, Tenant shall be liable, as damages for loss of a bargain to Landlord and not as a penalty, for the Stipulated Loss breach of this Lease, and shall pay to Landlord the total of (i) the reasonable costs of recovering the Leased Premises and the sum of all Rent and other indebtedness accrued to the date of such termination, (ii) the Rent due hereunder which was suspended or waived because of any "free rent period", (iii) out of pocket expenses of Landlord in constructing the Tenant finish required under this Lease, (iv) all commissions paid by Landlord in connection with this Lease, (v) the amount of the excess of (a) the total Rent and other benefits which Landlord would have received under this Lease for the remainder of the Term (at rates then in effect) together with all other expenses incurred by Landlord in connection with Tenant's default, over (b) the Fair Market Value of the Equipment Balance of the Lease Term (calculated as hereinafter defined) as of the time of such breach: and (vi) all other sums of money and damages then owing by Tenant to Landlord. As used herein, the term "Fair Market Value of the Balance of the Lease Term shall mean the difference between art amount equal to all Rent and other benefits payable over the remainder of the Lease Term, minus reasonable rental value of the Leased Premises for the same period. by comparison to other tenants of the Building (or, if there are no comparable tenants in the Building, in comparable buildings) and to other leasing space of comparable size, similarly situated, for a lease term comparable to the remainder of the Term, with such difference discounted to a present value based upon a rare of seven percent (7%) per annum.
(e) In the event that Landlord elects to repossess the Leased Premises without terminating the Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus rent required to be paid by Tenant to Landlord during the remainder of the Term until the date of expiration of the Term as stated in Paragraph 2, diminished by any net sums thereafter received by Landlord through reletting the Leased Premises during said period (after deducting reasonable expenses incurred by Landlord as provided in Subparagraph 22(1) hereof). Actions to collect amounts due by Tenant provided for in this Paragraph may be brought front time to time by Land lord during the aforesaid period, on one or more occasions, without the necessity of Landlord's waiting until expiration of such period; and in no event shall Tenant he entitled to any excess of Rent (or Rent plus other sums) obtained by reletting over and above the Rent provided for in this Lease.
(f) In the case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord in addition to any sum provided to be paid above, (i) reasonable broker's fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises, (ii) the reasonable cost of removing and storing Tenants or other occupants property; (iii) reasonable cost of repairing, altering, remodeling or otherwise purring the Leased Premises into condition acceptable to a new tenant or tenants, and (iv) all reasonable expenses incurred by Landlord in enforcing Landlord's remedies, including reasonable attorneys' fees. Past due Rent and other past due payments shall bear interest from maturity until paid by Landlord to Tenant at the rate described in Paragraph 40 hereof.
(g) In the event of repossession of the Leased Premises after an Event of Default. Landlord shall not have any obligation to reset or attempt to reset the Leased Premises, or any port ion thereof, or to collect Rent after reletting: but Landlord shall have the option to relet or attempt to relett and in the event of reletting. Landlord may reset the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose.
(h) If Tenant should fail to make any payment date or cure any Event of Default hereunder within the time herein permitted, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other Event of Default for the account of Tenant (and enter the Leased Premises for study purposes) and thereupon Tenant shall be obligated to, and hereby agrees to pay Landlord upon demand, as additional Rent hereunder, all reasonable costs, expenses and disbursements (including reasonable attorneys' fees) incurred by Landlord in taking such remedial action.
(i) In the event of any default by Landlord, Tenant's exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting the right to terminate this Lease, to a lien upon the property of Landlord and/or upon Rent due Landlord), but prior to any such action Tenant will give landlord written notice specifying such default with particularity and Landlord shall have thirty (30) days (plus an additional reasonable period as may be required by Landlord to cure such default, if Landlord shall diligently pursue the declaration cure of such default until same shall be cured) in which to cure any such default). Unless and until Landlord bills to so cure any default after such notice, Tenant shall also have any remedy or causes of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions, and all rents such obligations will be binding upon Landlord only during period of its ownership of the Building and other sums then due not thereafter. Landlord shall have no personal liability for the performance of any obligations hereunder, recourse by any party for default against Landlord being limited to Landlord's interest in the Building. The term "Landlord" shall mean only the owner of the Building at the date a commencement of the Term, and in the event of the transfer by such owner (or subsequent owner) of its interest in the Building, such previous owner shall thereupon be released and discharged from all covenants and obligations of the Landlord under this Agreement Lease thereafter accruing, and all Schedules. Lessor may terminate this Agreement as Tenant agree to any or all look only to the new owner for the performance of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units obligations of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveLandlord hereunder.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. All Leased Equipment remains the property of DAWGS. The following shall constitute an Event of Default under this Lease: (a) Lessor may any rent and/or installation charges and/or damaged or lost equipment charges payable under this Lease are in writing declare this Agreement in default if: arrears for forty-eight (i48)
(b) Lessee breaches its obligation fails to perform an affirmative, non-monetary covenant contained in this Lease; (c) Lessee becomes insolvent and unable to pay rent its debts as they become due or any other sum when due case or proceeding under any bankruptcy or insolvency law is commenced with respect to the Lessee and fails to cure the breach within ten (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach same is not dismissed within thirty (30) days after written notice from Lessordays; (ivd) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee the Leased Equipment or any guarantor amounts due hereunder become the subject of a lien or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equityencumbrance; or (xie) there is a material adverse change the Lessee violates any other terms or conditions contained herein or on any Order. If any such Event of Default occurs, DAWGS may terminate this Lease after giving the Lessee twenty-four (24) hours notice verbally or in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
writing (b) After a default, at the request no notice period will be given as per section 4 of Lessor, Lessee shall comply with the provisions of Section 9(athis Agreement) and thereupon, DAWGS shall have the following provisions shall apply also. Lessee hereby authorizes Lessor right, using all reasonable means to peacefully enter any premises where any on which the Leased Equipment may be located and take possession of the Leased Equipment thereof without any liability to DAWGS, including liability for damage to property resulting at the time of removal (or thereafter) of the Leased Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value Any failure of the Equipment (calculated as of the rent payment date prior DAWGS to the declaration of default), and all rents and other sums then due enforce its rights under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but Lease shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be considered a waiver of any other or subsequent defaultthose rights by XXXXX.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Samples: Rental Agreement
Default and Remedies. (a) Lessor may in writing declare this Agreement in Any of the following shall constitute a default if: by Lessee under the Lease (herein "Default"): (i) failure by Lessee breaches its obligation to pay rent or any other sum amounts under the Lease when due and fails to cure the breach within such remains unremedied for a period of ten (10) daysdays from the due date; or (ii) failure by Lessee breaches to comply with any provisions or perform any of its insurance obligations arising under Section 9the Lease or under any other documents or agreements relating to the Lease, and such remains unremedied by Lessee for a period of twenty (20) days; or (iii) any representations or warranties made or given by Lessee breaches in connection with the Lease or the Agreement, or any other document or agreement relating to the Lease or the Agreement, were false or misleading in a material way when made; or (iv) subjection of its the Equipment to levy or execution or other obligations and fails to cure that breach judicial process which is not or cannot be removed within thirty (30) days after written notice from Lessorthe subjection thereof; (iv) or the imposition of any representation unauthorized lien on or warranty made transfer of the Equipment by Lessee in connection with this Agreement shall be false or misleading in any material respectthrough Lessee; or (v) Lessee commencement of any insolvency, bankruptcy or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed similar proceedings by or against Lessee or any guarantor of any of Lessee's obligations under the Lease (herein "Guarantor"), including any assignment by Lessee or any Guarantor under any bankruptcy or insolvency laws for the benefit of creditors and in the event case of an any such involuntary petitionproceedings, the petition such is not dismissed, dismissed within forty-five thirty (4530) days of institutions; or the filing dateinability of Lessee to generally pay its debts as they become due; or (ixvi) any act of Lessee which imperils the value of the Equipment or the prospect of full performance of Lessee's obligations under the Lease, including but not limited to the liquidation or dissolution of Lessee or the commencement of any acts relative thereto, or without the prior written consent of Lessor, any sale or other disposition of all or substantially all of the assets of Lessee, or any merger or consolidation of Lessee unless Lessee is the surviving entity, or the cessation of business by Lessee; or (vii) a default by Lessee under any other material obligation for agreement or note with Lessor, or with any assignee of the Lease; or (A) borrowed money, (Bviii) the deferred purchase price death or dissolution of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or of any Guarantor, but not to include an initial public offeringthe withdrawal of any partner of Lessee if Lessee is a partnership, or the inability of Lessee or of any other stock offering, preferred Guarantor of the Lease to common, in which perform any of the primary purpose is to raise cash equity; or (xi) there is a material adverse change obligations contained in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by LessorLease or in any applicable guaranty.
(b) After a defaultUpon any Default, Lessor may exercise any one or more of the following remedies (which remedies shall be cumulative to the extent permitted by law): (i) terminate the Lease; (ii) declare all remaining Lease Payments for the balance of the Lease Term discounted at the request of LessorLease Rate, Lessee plus all other amounts due from Lessee, immediately due and payable in full, whereupon such shall comply with the provisions of Section 9(abecome immediately due and payable; (iii) secure peaceable repossession and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value removal of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to or its agent without judicial process; (iv) demand and Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having return the Equipment present at the place of sale. to Lessor may alsoin accordance with Section 11 hereof; (v) sell, but shall not be required to, lease, lease or otherwise dispose of the Equipment at public or keep idle all private sale without advertisement or part of the Equipment. notice except that required by law, upon such terms and at such place as Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges deem advisable and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or the purchaser at any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition such sale; (vi) demand and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred all expenses in connection with the enforcementEquipment relating to its retaking, assertionrefurbishing, defense selling or preservation of Lessor's rights and remedies under this Agreement, the like; (vii) exercise any other right or if prohibited by law, such lesser sum as remedy which may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default available to it under the terms of this Uniform Commercial Code or any other agreement between applicable law. In the event that Lessor disposes of the Equipment pursuant to this Section 9(b), Lessee shall be liable for any deficiency remaining after such disposition and Lessee may be declared by application of the resulting net proceeds, less the Purchase Option Price discounted at the Lease Rate, to Lessee's obligations under the Lease in the order of application as Lessor a default under this and any such other agreementshall elect.
Appears in 1 contract
Default and Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by the User.
(a) Lessor may User shall default in writing declare this Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when the due and fails punctual payment of the fees payable hereunder, and such default shall continue for five (5) days after Aeroplex shall have given User written notice of such default.
(b) User shall neglect or fail to cure the breach within ten (10) days; (ii) Lessee breaches perform or observe any of its insurance obligations under Section 9; the covenants herein contained on User's part to be performed or observed other than described in subparagraph (iiia) Lessee breaches any of its other obligations above, and fails User shall fail to cure that breach remedy same within thirty (30) days after Aeroplex shall have given to User written notice from Lessorspecifying such neglect or failure, or if such default is incapable of being cured within thirty (30) days, then in such event, if User shall fail to commence the cure of such default within thirty (30) days of receipt of written notice of same, and continue thereafter in good faith and with due diligence to cure same; or,
(ivc) any representation or warranty made by Lessee in connection with this Agreement User shall be false involved in financial difficulties as evidenced by (1) its admitting in writing its inability to pay its debts generally as they come due, or misleading (2) by it its filing a petition in any material respect; (v) Lessee Bankruptcy or any guarantor for reorganization or for the adoption of an arrangement under the Bankruptcy Act or an answer or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases pleading to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is be filed by or on behalf or User admitting the material allegations of such a petition or seeking, consenting to or acquiescing in the relief provided for under such Act, or (3) by its approving a petition filed against Lessee or any Guarantor under any it for the effecting of an arrangement in bankruptcy or insolvency laws and in for a reorganization pursuant to said Bankruptcy Act. In the event of an involuntary petitionany such material default or breach by User, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a defaultAeroplex may, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcelsanytime thereafter, with or without notice, notice or demand and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied limiting Aeroplex in the following order exercise of priorities: any right or remedy which Aeroplex may have by reason of such default or breach.
(i) Terminate User's right to pay possession of the Premises by any lawful means, in which case this Agreement shall terminate and User shall immediately surrender possession of the Premises to Aeroplex. In such event, Aeroplex shall be entitled to recover from User all damages incurred by Aeroplex by reason of LessorUser's costsdefault, charges including but not limited to, the cost of recovering possession of the Premises; expense of reletting, including removal of the alterations User may have made during the occupancy of the Premises, reasonable attorney fees, and expenses incurred in taking, removing, holding, repairing and selling, any real estate commission actually paid; that portion of any leasing or otherwise disposing commission paid by Aeroplex applicable to the unexpired term of Equipment; then this Agreement
(ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of Pursue any other remedy now or subsequent default.
(d) Any default hereafter available to Aeroplex under the terms laws or judicial decisions of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreementthe state wherein the Premises are located.
Appears in 1 contract
Samples: Use & Occupancy Agreement (Gulfstream Aerospace Corp)
Default and Remedies. (a) Lessor may in writing declare this Agreement in default ifThe term "Event of Default" hereunder shall -------------------- mean any of the following: (i) Lessee breaches its obligation AEC shall fail to pay rent or any other sum amount due hereunder when due and fails to cure the breach within ten or declared due (10) dayswhether by maturity, acceleration or otherwise); (ii) Lessee breaches any proceeding shall be instituted by or against either AEC or USIS or any of the Pledged Collateral under the provisions of any federal bankruptcy, reorganization, arrangement of debt, insolvency or receivership laws or similar state or federal laws providing for the relief of debtors, and such proceeding shall not have been dismissed within sixty (60) days following its insurance obligations under Section 9institution (except for a proceeding instituted by Deere Park prior to an Event of Default); (iii) Lessee breaches any either AEC or USIS shall make an assignment for the benefit of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessorcreditors; (iv) any representation either AEC or warranty made by Lessee in connection with this Agreement USIS is or shall be false in breach or misleading default in any material respectrespect of any of its representations, warranties, covenants, undertakings or other obligations made pursuant to this Agreement, or otherwise fail to comply with any of the terms and provisions hereof; (v) Lessee any proceeding shall be instituted by or any guarantor against either AEC or other obligor USIS for the Lessee's obligations hereunder its liquidation or dissolution and not dismissed within sixty ("GUARANTOR"60) becomes insolvent days, or ceases (vi) either AEC or USIS shall cease to do business as a going concern; concern for any reason. If an Event of Default under the terms of this Agreement shall occur and be continuing, Deere Park, without obligation to resort to any other security, at the expense of AEC, shall have the right at any time and from time to time, in its sole discretion, to take any and all of the following actions:
a. cause the Court in the Litigation to enter the Stipulation and enforce the same to its fullest extent;
b. exercise any and all rights under applicable law to enforce the judgment and discover the assets of AEC;
c. receive from the Escrow Agent the Pledged Collateral upon an Event of Default relative from the failure of AEC to timely make the payments under this Agreement;
d. instruct the Escrow Agent to deliver the Pledged Collateral to Deere Park within two (vi2) business days of Deere Park's notice to the Escrow Agent and AEC for all Events of Default (other than the failure of AEC to make any Equipment is illegally used; (viipayments contemplated by this Agreement) if Lessee or of an Event of Default and to exercise any Guarantor is a natural personand all rights under applicable law to enforce its security interest including but not limited to its rights to foreclose upon the Pledge Collateral and apply the proceeds of the Pledged Collateral directly to reduce the obligations hereunder, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and provided that in the event of an involuntary petitionEvent of Default other than a payment default, AEC shall have the petition is not dismissed, within forty-five (45) days right to object to delivery of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change Pledged Collateral as provided in the Lessee's financial condition. The default declaration shall apply to Escrow Agreement; and
e. receive from AEC interest at a rate of 14% per annum on all Schedules unless specifically excepted by Lessor.
(b) After a defaultamounts due on the obligations hereunder accruing from May 15, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior 2000 to the declaration date paid and reimbursement of default), all attorneys' fees and costs and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges costs and expenses incurred in takingby Deere Park related to enforcement of Deere Park rights herein, removingincluding without limitation, holdingentering and enforcing the Stipulation and foreclosing on the Pledged Collateral, repairing and selling, leasing or otherwise disposing all of Equipment; then (ii) which amounts AEC hereby agrees to the extent not previously paid by Lessee, promptly pay to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and then (iv) to Lessee, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) aboveDeere Park.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this and any such other agreement.
Appears in 1 contract
Default and Remedies. (a) Lessor may in writing declare this Agreement in It shall be deemed a default if: hereunder if any of the following shall occur:
(i) Lessee breaches its obligation Tenant shall fail, for any reason, to pay rent or make any other sum payment of Rent as and when the same is due to be paid hereunder and fails to cure the breach within ten such default shall continue for five (10) days; (ii) Lessee breaches any of its insurance obligations under Section 9; (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (305) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be false or misleading in any material respect; (v) Lessee or any guarantor or other obligor for the Lessee's obligations hereunder ("GUARANTOR") becomes insolvent or ceases is given to do business as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor under any bankruptcy or insolvency laws and in the event of an involuntary petition, the petition is not dismissed, within forty-five (45) days of the filing date; (ix) Lessee default under any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under the lease agreement; (x) there is any dissolution, termination or existence, merger, consolidation or change in controlling ownership or Lessee or any Guarantor, but not to include an initial public offering, or any other stock offering, preferred to common, in which the primary purpose is to raise cash equity; or (xi) there is a material adverse change in the Lessee's financial condition. The default declaration shall apply to all Schedules unless specifically excepted by Lessor.Tenant;
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 9(a) and the following provisions shall apply also. Lessee hereby authorizes Lessor to peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all rents and other sums then due under this Agreement and all Schedules. Lessor may terminate this Agreement as to any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use Lessee's premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or otherwise disposing of Equipment; then (ii) to the extent not previously paid by LesseeTenant shall fail, for any reason, to pay Lessor all sums due from Lessee under this Agreement; then (iii) to reimburse to Lessee perform any sums previously paid by Lessee as liquidated damages; and then (iv) to Lesseeother covenant, if there exists any surplus. Lessee shall immediately pay any deficiency in (i) and (ii) above.
(c) The foregoing remedies are cumulativecondition, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale agreement or other disposition obligation on the part of Tenant to be observed or performed pursuant to this Lease (and other than the time and place thereof), and the manner and place payment of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(dRent) Any default under the terms of this or any other agreement between Lessor the parties, related to the Premises (except for such events described in subsections 16.1(iii) through 16.l(viii) for which no cure period is available), and Lessee such default shall continue for fifteen (15) days after written notice thereof to Tenant or such shorter period as expressly provided herein or, provided such default can be cured and Tenant is acting diligently, continuously and in good faith, such longer period as may be declared reasonably required to complete the remedying of such default;
(iii) Tenant shall make or purport to m.xxx a Transfer affecting the Premises, or the Premises shall be used by Lessor any Person or for any purpose, other than in compliance with and as expressly authorized by this Lease;
(iv) Tenant makes an assignment for the benefit of creditors or becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors, or makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord, where required, and made pursuant to all applicable legislation), or steps are taken or action or proceedings commenced by any Person for the dissolution, winding up or other termination of Tenant's existence or for the liquidation of Tenant's assets (provided the foregoing shall not be considered a default hereunder if such steps or action or proceedings are the subject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof);
(v) a trustee, receiver, receiver-manager, manager, agent or other like Person shall be appointed in respect of the assets or business of Tenant, and such appointment is not bona fide defended or set aside within five (5) days thereafter;
(vi) Tenant attempts to or does abandon the Premises or, out of the ordinary course of business, remove or dispose of any substantial portion of goods and chattels from the Premises;
(vii) a writ of execution has been filed against Tenant or its interest in this Lease or any substantial portion of the goods or other property of Tenant on the Premises shall at any time be seized or taken in execution or attachment and such writ or seizure or taking is not bona fide defended or set aside within five (5) days thereafter (provided that the foregoing shall not be considered a default hereunder if such writ or seizure or taking is the subject of a bona fide dispute between Tenant and such Person and Tenant delivers to Landlord satisfactory evidence thereof);
(b) If there is an event of default then, without prejudice to and in addition to any other rights and remedies to which Landlord is· entitled pursuant hereto or at law, the then current and the next three (3) months' Rent shall be forthwith due and payable and Landlord shall have the following rights and remedies, all of which are cumulative and not alternative:
(i) to terminate this Lease in respect of the whole or any part of the Premises by written notice to Tenant (it being understood that actual possession shall not be required to effect a termination of this Lease and that written notice alone shall be sufficient), it being understood and agreed that, if this Lease is terminated in respect of part of the Premises, this Lease shall thereupon be deemed amended as necessary to give effect thereto without need for further amendment;
(ii) to enter the Premises as agent of Tenant and as such agent to relet them for whatever term (which may be for a term extending beyond the Term, provided that Tenant's liability hereunder shall not extend beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefor and, as the agent of Tenant, to take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same at the expense and risk of Tenant or to sell or otherwise dispose of the same at public or private sale without further notice, and to make such alterations to the Premises in order to facilitate their re-letting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from there-letting of the Premises, less all expenses incurred by Landlord in making the Premises ready for re letting and in re-letting the Premises, on account of the Rent due and to become due under this Lease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; no such entry or taking possession of or performing alterations to or re-letting of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
(iii) to remedy or attempt to remedy any default of Tenant in performing any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant therefor and without any liability for any damages resulting thereby, and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord's covenants hereunder and without thereby being deemed to infringe upon any of Tenant's rights pursuant hereto, and, in such case, Tenant shall pay to Landlord forthwith upon demand all amounts paid by Landlord to third parties in respect of such default and all reasonable costs of Landlord in remedying or attempting to remedy any such default plus fifteen percent (15%) of the amount of such costs for Landlord's inspection, supervision, overhead and profit;
(iv) to obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time, it being agreed that Landlord shall use commercially reasonable efforts to mitigate its damages if Landlord terminates this Lease as a result of Tenant's default; and
(v) if this Lease is terminated due to the default of Tenant, or if it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant (collectively "Disclaimer''), to obtain payment from Tenant of the value of all tenant inducements which were received by Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other agreementwork for Tenant's benefit completed at Landlord's cost and moving allowance, which value shall be multiplied by a fraction, the numerator of which shall be the number of months from the date of Disclaimer to the date which would have been the natural expiry of this Lease but for such Disclaimer, and the denominator of which shall be the total number of months of the Term as originally agreed upon.
Appears in 1 contract
Samples: Multi Tenant Industrial Lease (Alliance Data Systems Corp)
