Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”): (i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i); (ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or (iii) The Company shall fail to pay the any part of the Principal when due hereunder; (b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable. (c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 4 contracts
Samples: Convertible Promissory Note (Traios Christos P), Convertible Promissory Note (Digital Power Corp), Convertible Promissory Note (Digital Power Corp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute As used herein, an event of default (“"Event of Default”):" occurs if:
(i) The Company defaults in the payment of principal and/or interest when the same becomes due and payable and such failure is not cured within ten (10) business days after the Company receives written demand from Holder or the Representative to remedy the same.
(ii) the Company fails to comply with any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventother provision contained in this Series 1 Bridge Note, the Purchase Agreement, the Warrant, the Repricing Warrant, or seeking dissolutionthe Registration Rights Agreement, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief and such failure is not cured within ten (10) business days after the Company receives written demand from Holder to remedy the same;
(iii) the Company defaults in any payment of principal of or composition interest on any Debt (excluding trade payables) in excess of it $100,000 beyond any period of grace provided with respect thereto and the effect of such failure is to cause the holder of such Debt to accelerate the Debt such that such Debt becomes due prior to its stated maturity;
(iv) any representation or its debts under warranty made in writing by or on behalf of (i) the Company in the Purchase Agreement or in any law relating writing furnished in connection with or pursuant to bankruptcy, insolvency the Purchase Agreement or reorganization or relief of debtorsin connection with the transactions contemplated by this Agreement, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such (ii) the Company or any subsidiary or for any substantial part of its propertyin the Registration Rights Agreement, or (iii) the Company in the Escrow Agreement, shall consent to the commencement against it of such a proceeding or case, or shall file an answer be false in any such case material respect on the date as of which made;
(v) the Company makes an assignment for the benefit of creditors or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay is generally not paying its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(iivi) Any proceeding shall be instituted against any order or decree for relief in respect of the Company seeking to adjudicate it a bankrupt or insolventis entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, or seeking dissolutionliquidation or similar law, whether now or hereafter in effect (herein called the "Bankruptcy Law"), of any jurisdiction;
(vii) the Company petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or similar official of debtorsthe Company, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of the assets of the Company, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings relating to the Company under the Bankruptcy Law of any other jurisdiction;
(viii) any petition or application described in Section 10(a)(vi) above is filed, or any such proceedings are commenced, against the Company and the Company by any act indicates its propertyapproval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings, and either such proceeding shall not have been dismissed order, judgment, or shall not have been stayed decree remains unstayed and in effect for a period of more than sixty (60) days days;
(ix) any order, judgment, or decree is entered in any proceedings against the Company decreeing the dissolution of the actions sought Company and such order, judgment, or decree remains unstayed and in such proceeding effect for more than sixty (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property60) shall occurdays; or
(iiix) The a final judgment (not fully covered by insurance) in an amount in excess of $100,000 is rendered against the Company shall fail to pay and, within ten (10) business days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within ten (10) days after the expiration of any part of the Principal when due hereunder;such stay, such judgment is not discharged.
(b) If Upon the occurrence of an Event of Default described above has occurredin subsection (vi), then the Holder may(vii), without further notice to the Companyor (viii) of Section 10(a), declare the principal amount of and accrued interest on this Series 1 Bridge Note at the time outstanding, and all other amounts payable under this Note to be forthwith shall automatically become immediately due and payable, whereupon such without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Company. If any other Event of Default exists, Holder may, in addition to the exercise of any right, power, or remedy permitted to Holder by law, declare (by written notice or notices to the Company) the entire principal of and all such amounts shall become and interest accrued on this Series 1 Bridge Note to be forthwith due and payable, and this Series 1 Bridge Note shall thereupon become immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by the Company. Upon such declaration, the Company will immediately pay to Holder of this Series 1 Bridge Note the then outstanding principal of and accrued and unpaid interest on the Series 1 Bridge Notes. If at any time after acceleration of the maturity of the Series 1 Bridge Notes, the Company shall pay all arrears of interest and all payments on account of principal which shall have become due other than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rate specified in the Series 1 Bridge Notes) and all Events of Default (other than nonpayment of principal of or interest on this Series 1 Bridge Note due and payable solely by virtue of acceleration) shall be remedied or waived by Holder by written notice to the Company may rescind and annul the acceleration and its consequences, but such action shall not affect any subsequent Event of Default or impair any right consequent thereon.
(c) The Company covenants that in case the Principal of the Note becomes due and payable A delay or omission by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, Series 1 Bridge Note in exercising any right or remedy arising upon an Event of Default shall not impair such right or remedy or constitute a waiver of or an acquiescence in the whole amount that then Event of Default.
(d) If any Event of Default shall have become due occur and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amountbe continuing, the Holder of this Series 1 Bridge Note may commence an proceed to protect and enforce their rights under this Agreement and this Series 1 Bridge Note by exercising such remedies as are available to such Holder either by suit in equity or by action at law, or proceeding both, whether for specific performance of any covenant or other agreement contained in this Agreement or in aid of the exercise of any power granted in this Agreement. No remedy conferred in this Agreement upon Holder is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or now or hereafter existing at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment by statute or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableotherwise.
Appears in 4 contracts
Samples: Bridge Financing Note (Cambex Corp), Bridge Financing Note (Cambex Corp), Bridge Financing Note (Cambex Corp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) Default in the payment of any other obligation of the Company in an amount in excess of $100,000; or
(iv) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(v) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 4 contracts
Samples: Convertible Promissory Note (TheRetirementSolution.com, Inc.), Convertible Promissory Note (IFSA Strongman, Inc.), Promissory Note (Titan Global Holdings, Inc.)
Events of Default and Remedies. Any one of the following occurrences shall constitute an "event of default" under this Note:
(a) Any one The failure by Maker to make any payment of principal or more interest upon this Note as and when the same becomes due and payable in accordance with the terms hereof, and the continuation of such failure for five (5) days after written notice thereof to Maker from JMB;
(b) The occurrence of any default under this Note other than as described in the following events which preceding clause (a), and the continuance of such failure for thirty (30) days after written notice thereof to Maker from JMB; provided that if at the end of such 30 day period Maker, in JMB's sole judgment, is proceeding with due diligence to cure such default, then there shall have occurred and not be continuing shall constitute an event of default (“Event for an additional period of Default”):the shorter of 60 days or the period during which, in JMB's sole judgment, Maker continues to proceed with due diligence to cure such default;
(ic) The Company occurrence of any Default (as defined in the Third Amended and Restated Security Agreement) under the Priority Security Agreement;
(d) Maker, any general partner of Maker (or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventconstituent general partner thereof), or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief any entity whose equity constitutes collateral under a Security Agreement (a "Collateral Entity") becomes insolvent or composition of it or its debts under any law relating generally fails to bankruptcy, insolvency or reorganization or relief of debtorspay, or seeking admits in writing its inability to pay, debts as they become due; or Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity applies for, consents to, or acquiesces in the entry appointment of, a trustee, receiver or other custodian for itself or of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Maker, any general partner of Maker (D) shall take or any constituent general partner thereof), or any Collateral Entity, or for a substantial part of the property of any of them and is not discharged within 30 days; or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced in respect of Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, and if such case or proceeding is not commenced by Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, it is consented to or acquiesced in by Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, or remains for 60 days undismissed; or Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, takes any action to authorize authorize, or effect in furtherance of, any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurforegoing; or
(iiie) The Company shall fail Any representation, warranty or certification made by Maker to pay JMB or any subsequent holder hereof in connection with the Loan, this Note, any part Security Agreement, or any other document executed in connection herewith proves to be or to have been false in any material respect at any time. For purposes of the Principal when due hereunder;
foregoing clauses (bc) If and (e) of this Section 9, with respect to any event or occurrence which constitutes an Event event of Default described above has occurreddefault hereunder solely by reason of its constituting a default (as distinguished from an "event of default") under a document or instrument other than this Note, then the Holder may, without further notice to the Companyextent (if any) that such other document or instrument provides a grace or cure period with respect to such default, declare the same grace or cure period, and only such period, shall apply with respect to this Note. Upon the occurrence of any event of default hereunder: (i) the entire unpaid principal amount of balance of, and any unpaid interest then accrued on, and any other amounts owing under or evidenced by this Note shall, at the time outstandingoption of the holder hereof and without notice or demand of any kind to Maker or any other person, and all other amounts payable under this Note to be forthwith immediately become due and payable, whereupon such principal ; and (ii) the holder hereof shall have and may exercise any and all such amounts shall become rights and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding remedies available at law or in equity for the collection and also any and all rights and remedies provided in Security Agreements or in any other instrument securing this Note. The remedies of the sums so due holder hereof, as provided herein or in the Security Agreements or any other instrument securing this Note, shall be cumulative and unpaidconcurrent, and may prosecute be pursued singularly, successively or together, at the sole discretion of the holder hereof, and may be exercised as often as occasion therefor shall arise. No act of omission or commission of the holder, including specifically any such action failure to exercise any right, remedy or proceeding to judgment or final decree against Company or other obligor upon this Noterecourse, wherever situated, the monies adjudicated or decreed shall be deemed to be payablea waiver or release of the same, such waiver or release to be effected only through a written document executed by the holder and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.
Appears in 3 contracts
Samples: Promissory Note (JMB 245 Park Avenue Associates LTD), Promissory Note (JMB 245 Park Avenue Associates LTD), Note Split Agreement (JMB 245 Park Avenue Associates LTD)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Medical Center shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for twenty (A20) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolventMedical Center by GKF;
(d) Medical Center ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Medical Center seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Medical Center's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay not be vacated. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyMedical Center, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default. In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 3 contracts
Samples: Lease Agreement (American Shared Hospital Services), Lease Agreement (American Shared Hospital Services), Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. (a) Any 5.1 Unless waived by the holders of a majority-in-interest of the principal amount of the Notes, the entire unpaid principal amount of this Note, together with all accrued interest hereon, at the option of the holder hereof exercised by notice to the Company, shall forthwith become and be due and payable if any one or more of the following events which (herein called "Events of Default") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the time of such notice, that is to say:
(a) if default shall constitute be made in the due and punctual payment of the principal of this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable;
(c) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Company or any Subsidiary contained in this Note or in the Purchase Agreement or any other agreement to which the Company and the holder of this Note are party, and such default shall have continued for a period of 30 days after notice thereof to the Company;
(d) if any representation or warranty made by the Company under the Purchase Agreement or in any document or certificate furnished by the Company pursuant thereto shall prove to be inaccurate in any material respect when made;
(e) if this Note, the Purchase Agreement or any other agreement to which the Company and the holder of this Note are party shall cease to be enforceable in accordance with its terms against the Company, or the Company shall so state in writing;
(f) if the Company or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of, premium, if any, or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; or if the Company or any Subsidiary shall default beyond any grace period herein provided in the performance or observance of any other agreement, term or condition contained in such obligation or in any agreement under which any such obligation is created, if the effect of any such default is to cause or permit the holder or holders of such obligations (or a trustee on behalf of such holder or holders) to cause such obligation to become due prior to the date of its stated maturity, unless such holder or holders or trustee shall have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create an event of default thereunder;
(“Event g) if final judgment for the payment of Default”):money in excess of $100,000 shall be rendered by a court of record against the Company or any Subsidiary and the Company or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or shall not procure a stay of execution thereon within 30 days from the date of entry thereof and, within the period during which execution of such judgment shall have been stayed, appeal therefrom, and cause the execution thereof to be stayed during such appeal;
(h) if the Company or any Subsidiary shall:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking admit in writing its inability to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or pay its debts under any law relating generally as they become due;
(ii) file a petition in bankruptcy or a petition to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry take advantage of any order insolvency act;
(iii) make an assignment for relief or the benefit of creditors;
(iv) consent to the appointment of a receiverreceiver of itself or of the whole or any substantial part of its property;
(v) on a petition in bankruptcy filed against it, trusteebe adjudicated a bankrupt; or
(vi) file a petition or answer seeking reorganization or arrangement under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, custodian district or other similar official for such territory thereof;
(i) if a court of competent jurisdiction shall enter, except at the direct or indirect request of the holder of this Note, an order, judgment, or decree appointing, without the consent of the Company or any subsidiary Subsidiary, a receiver of the Company or for any Subsidiary or of the whole or any substantial part of its property, or shall consent to the commencement approving a petition filed against it seeking reorganization or arrangement of the Company or any Subsidiary under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such a proceeding order, judgment or casedecree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(j) if, or shall file an answer in under the provisions of any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment other law for the benefit of creditors; relief or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief aid of debtors, any court of competent jurisdiction shall assume custody or seeking the entry control of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any Subsidiary or of the whole or any substantial part of its property, property and either such proceeding custody or control shall not have been dismissed be terminated or shall not have been stayed for a period within 60 days from the date of sixty (60) days assumption of such custody or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payablecontrol.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 3 contracts
Samples: Stock and Convertible Note Purchase Agreement (Electronic Retailing Systems International Inc), Convertible Note (Electronic Retailing Systems International Inc), Convertible Note (Electronic Retailing Systems International Inc)
Events of Default and Remedies. 4.1 Each of the following shall constitute an Event of Default under this Agreement:
(a) Any one Pledgor shall default in the performance of any of his agreements herein or more in any instrument or document delivered pursuant to this Agreement or the Debt, including, without limitation, the Line Letter and the Note;
(b) The perfection of any security interest granted Bank in any of the following events which shall have occurred and be continuing shall constitute an event of default Collateral is impaired or in Bank’s reasonable belief is about to become impaired;
(“Event of Default”):c) Any Pledgor:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventgenerally not, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its propertybe unable to, or shall consent to the commencement against it of such a proceeding or caseadmit in writing its inability to, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; ;
(Cii) shall make a general an assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(iiiii) Any proceeding shall be instituted against the Company seeking file a petition in bankruptcy or for any relief under any law of any jurisdiction relating to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustmentreadjustment of debt, protection, relief dissolution or liquidation;
(iv) shall have any such petition filed against it and the same shall remain undismissed for a period of debtors, 30 days or seeking the entry of an order for relief shall consent or the appointment of acquiesce thereto; or
(v) shall have had a receiver, trustee, custodian or other similar official trustee appointed as a result of any insolvency for the Company all or for any a substantial part of its property;
(d) Any action, and either suit, proceeding or investigation against or affecting any Pledgor before any court or governmental agency which involves forfeiture of any assets of such proceeding Pledgor shall not have been dismissed commenced; or
(e) one or more judgments, decrees or orders for the payment of money in excess of $250,000 in the aggregate shall not have been stayed be rendered against any Pledgor and shall continue unsatisfied and in effect for a period of sixty (60) 60 consecutive days without being vacated, discharged, satisfied or any stayed or bonded pending appeal.
4.2 Upon the occurrence of one or more of the actions sought in foregoing Events of Default and without further consent from any Pledgor, Bank may liquidate so much of the Collateral of such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail Pledgor as is required to pay the Debt of such Pledgor and the costs, expenses and fees described in Section 2.1 hereof. Bank may apply any part such net proceeds in such order or preference as Bank may determine, except that any proceeds derived from the liquidation of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice Collateral shall be applied first by Bank to the Companypayment of any obligations of such Pledgor due to Bank pursuant to the Line Letter and the Note and then to any other Debt of such Pledgor which is outstanding and unpaid.
4.3 In addition, declare the principal amount if any Debt of this Note at the time outstanding, and all other amounts payable under this Note to a Pledgor is not be forthwith paid in full promptly when due and payable, whereupon such principal and all such amounts shall become and be forthwith whether due and payable.
(c) The Company covenants that in case the Principal by lapse of the Note becomes time or by acceleration due and payable by declaration to demand or otherwise, then the Company will pay Bank in cash its discretion may further, upon such terms and in such manner as Bank shall deem advisable as to the Holder Collateral of this Notesuch Pledgor, sell, redeem, assign, transfer or deliver the whole amount that then Collateral, or any portion thereof, and Bank shall have become due and payable on this Note for Principal. In case apply the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection net proceeds of the sums so sale thereof to such Debt and the costs, expenses and fees described in Section 2.1 hereof, whether or not due, in such order or preference as Bank may determine, except that any proceeds derived from the liquidation of the Collateral shall be applied first by the Bank to the payment of any obligations of such Pledgor due to the Bank pursuant to the Line Letter and the Note and then to any other Debt which is outstanding and unpaid, .
4.4 Bank shall provide to the relevant Pledgor at least five (5) days’ notice to such Pledgor of the time and may prosecute place of any such action public sale or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed time after which any private sale is to be payablemade which shall constitute reasonable notification, provided that Bank may sell any Collateral of such Pledgor if such Collateral consists of securities regularly traded on a nationally recognized market or are obligations of the United States.
Appears in 3 contracts
Samples: Secured Line of Credit Agreement (Excelsior Funds Trust), Secured Line of Credit Agreement (Excelsior Tax Exempt Funds Inc), Secured Line of Credit Agreement (Excelsior Funds Inc)
Events of Default and Remedies. (a) Any If any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event "Events of Default”):") shall occur:
(ia) The Company Debtor shall fail to make any payment in respect of the Liabilities when due; or
(b) any certification, statement, representation, warranty or financial report or statement heretofore or hereafter furnished by or on behalf of Debtor or any subsidiary guarantor of any or all of the Liabilities proves to have been false in any material respect at the time as of which the facts therein set forth were stated or certified or has omitted any material contingent or unliquidated liability or claim against Debtor or any such guarantor; or
(Ac) Debtor or any guarantor of any or all of the Liabilities shall institute fail to perform or observe any proceeding covenant, condition or voluntary case seeking agreement to adjudicate be performed or observed by it bankrupt hereunder or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law guaranty agreement; or
(d) Debtor or any guarantor of any or all of the Liabilities shall be in breach of or in default in the payment and performance of any obligation relating to bankruptcy, insolvency any of the Other Liabilities; or
(e) Debtor or reorganization or relief of debtors, or seeking the entry any guarantor of any order of Debtor's obligations hereunder shall be in breach of or in default in the payment or performance of any obligation owing to any bank, lender, lessor or financial institution, howsoever arising, present or future, contracted for relief or the appointment of a receiveracquired, trusteeand whether joint, custodian several, absolute, contingent, secured, unsecured, matured or other similar official for such the Company unmatured; or
(f) Debtor or any subsidiary guarantor of any or all of the Liabilities shall cease doing business as a going concern, make an assignment for any substantial part the benefit of its propertycreditors, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply pay its debts generally; (C) shall make as they become due, file a general assignment for the benefit petition commencing a voluntary case under any chapter of creditors; or (D) shall take any action to authorize or effect any Title 11 of the actions set forth above in this subsection 4(a)(iUnited States Code entitled "Bankruptcy" (the "Bankruptcy Code");
(ii) Any proceeding shall , be instituted against the Company seeking to adjudicate it a bankrupt or adjudicated an insolvent, or file a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law, rule or regulation or file an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consent to the filing of such a petition or acquiescence in the appointment of a trustee, receiver or liquidator of it or of all or any part of its assets or properties, or seeking the entry of take any action looking to its dissolution or liquidation; or
(g) an order for relief against Debtor or any guarantor of any or all of the Liabilities shall have been entered under any chapter of the Bankruptcy Code or a decree or order by a court having jurisdiction in the premises shall have been entered approving as properly filed a petition seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against Debtor or any guarantor of any or all of the Liabilities under any present or future statute, law, rule or regulation, or within thirty (30) days after the appointment without Debtor's or such guarantor's consent or acquiescence of a receiver, any trustee, custodian receiver or other similar official for the Company liquidator of it or for such guarantor or of all or any substantial part of its propertyor such guarantor's assets and properties, such appointment shall not be vacated, or an order, judgment or decree shall be entered against Debtor or such guarantor by a court of competent jurisdiction and shall continue in effect for any period of ten (10) consecutive days without a stay of execution, or any execution or writ or process shall be issued under any action or proceeding against Debtor whereby the Equipment or its use may be taken or restrained; or
(h) Debtor or any guarantor of any or all of the Liabilities shall suffer an adverse material change in its financial condition as compared to such condition as at the date hereof, and either as a result of such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days change in condition Secured Party deems itself or any of the actions sought Equipment to be insecure; then and in any such proceeding (includingevent, Secured Party may, at the sole discretion of Secured Party, without limitation, the entry notice or demand and without limitation of any order for relief against it rights and remedies of Secured Party under the Uniform Commercial Code, take any one or more of the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orfollowing steps:
(iii1) The Company shall fail to pay the any part Declare all of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note Time Balance to be forthwith due and payable, whereupon such principal the same shall forthwith mature and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable as provided for in paragraph 16 below, provided, however, upon the occurrence of any of the events specified in subparagraphs (f) and (g) above, all sums as specified in this clause (1) shall immediately be due and payable without notice to Debtor (the date on this Note for Principal. In case which Secured Party declares all of the Company shall fail forthwith Time Balance to pay such amountbe due and payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity, the Holder may commence an action or proceeding at law or in equity other appropriate proceedings, whether for the collection specific performance of any agreement contained herein, or for an injunction against a violation of any of the sums so due terms hereof, or in aid of the exercise of any other right, power or remedy granted hereby or by law, equity or otherwise; and
(3) at any time and unpaidfrom time to time, with or without judicial process and the aid or assistance of others, enter upon any premises wherein any of the Equipment may be located and, without resistance or interference by Debtor, take possession of the Equipment on any such premises, and require Debtor to assemble and make available to Secured Party at the expense of Debtor any part or all of the Equipment at any place or time designated by Secured Party; and remove any part or all of the Equipment from any premises wherein the same may prosecute any such action or proceeding to judgment or final decree against Company be located for the purpose of effecting the sale or other obligor disposition thereof; and sell, resell, lease, assign and deliver, grant options for or otherwise dispose of any or all of the Equipment in its then condition or following any commercially reasonable preparation or processing, at public or private sale or proceedings, by one or more contracts, in one or more parcels, at the same or different times, with or without having the Equipment at the place of sale or other disposition, for cash and/or credit, and upon this Noteany terms, wherever situatedat such place(s) and time(s) and to such persons, firms or corporations as Secured Party shall deem best, all without demand for performance or any notice or advertisement whatsoever, except that Debtor shall be given five (5) business days' written notice of the monies adjudicated place and time of any public sale or decreed of the time after which any private sale or other intended disposition is to be payablemade, which notice Debtor hereby agrees shall be deemed reasonable notice thereof. If any of the Equipment is sold by Secured Party upon credit or for future delivery, Secured Party shall not be liable for the failure of the purchaser to pay for same and in such event Secured Party may resell such Equipment. Secured Party may buy any part or all of the Equipment at any public sale and if any part or all of the Equipment is of a type customarily sold in a recognized market or which is the subject of widely distributed standard price quotations Secured Party may buy at private sale and may make payment therefor by application of all or a part of the Liabilities and of all or a part of any Other Liabilities. Any personalty in or attached to the Equipment when repossessed may be held by Secured Party without any liability arising with respect thereto, and any and all claims in connection with such personalty shall be deemed to have been waived unless notice of such claim is made by certified or registered mail upon Secured Party within three business days after repossession. Secured Party shall apply the cash proceeds from any sale or other disposition of the Equipment first, to the reasonable expenses of re-taking, holding, preparing for sale, selling, leasing and the like, and to reasonable attorneys' fees and other expenses which are to be paid or reimbursed to Secured Party pursuant hereto, and second, to all outstanding portions of the Liabilities and to any Other Liabilities in such order as Secured Party may elect, and third, any surplus to Debtor, subject to any duty of Secured Party imposed by law to the holder of any subordinate security interest in the Equipment known to Secured Party; provided however, that Debtor shall remain liable with respect to unpaid portions of the Liabilities owing by it and will pay Secured Party on demand any deficiency remaining with interest as provided for in paragraph 16 below.
Appears in 3 contracts
Samples: Master Loan and Security Agreement (Triangle Pharmaceuticals Inc), Master Loan and Security Agreement (Universal Access Inc), Master Loan and Security Agreement (Digital Impact Inc /De/)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurfederal bankruptcy law; or
(iii4) The Company Any representation or warranty made by the Borrower in any Credit Document shall fail to pay be false or misleading in any material respect on the any part date as of the Principal when due hereunder;which made (or deemed made); or
(b5) If an Event Any default by the Borrower shall occur in the performance or observance of Default described above has occurredany term, then the Holder maycondition, without further notice or provision contained in any Credit Document and not referred to the Companyin clauses (1) through (4) above, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts which default shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note continue for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.thirty
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement, Loan Agreement
Events of Default and Remedies. (a) Any one or more if default shall be made in the due and punctual payment of the following events which principal of this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have occurred continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Corporation contained in this Note, and be continuing such default shall constitute an event have continued for a period of 30 days;
(e) the holder or holders of such obligations (or a trustee on behalf of such holder or holders) to cause such obligation to become due prior to the date of its stated maturity, unless such holder or holders or trustee shall have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a default thereunder;
(“Event of Default”):f) if the Corporation or any Subsidiary shall:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking admit in writing its inability to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or pay its debts under any law relating generally as they become due;
(ii) file a petition in bankruptcy or a petition to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry take advantage of any order insolvency act;
(iii) make an assignment for relief or the benefit of creditors;
(iv) consent to the appointment of a receiver, trustee, custodian receiver of itself or other similar official for such of the Company whole or any subsidiary substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(g) if a court of competent jurisdiction shall enter an order, judgment, or for decree appointing, without the consent of the Corporation or any Subsidiary, a receiver of the Corporation or any Subsidiary or of the whole or any substantial part of its property, or shall consent to the commencement approving a petition filed against it of such a proceeding seeking reorganization or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any arrangement of the actions Corporation or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set forth above in this subsection 4(a)(i)aside or stayed within 60 days from the date of entry thereof;
(iih) Any proceeding shall be instituted against if, under the Company seeking to adjudicate it a bankrupt provisions of any other law for the relief or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief aid of debtors, any court of competent jurisdiction shall assume custody or seeking control of the entry Corporation or any Subsidiary or of an order for relief the whole or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, property and either such proceeding custody or control shall not have been dismissed be terminated or shall not have been stayed for a period within 60 days from the date of sixty (60) days assumption of such custody or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurcontrol; or
(iiii) The Company if final judgment for the payment of money in excess of $50,000 shall fail be rendered by a court of record against the Corporation or any Subsidiary and the Corporation or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its 14 14 terms, or shall not procure a stay of execution thereon within 60 days from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, appeal therefrom, and cause the execution thereof to pay the be stayed during such appeal.
8.2. In case any part one or more of the Principal when due hereunder;
(b) If an Event Events of Default described above has occurredspecified in Section 8.1 hereof shall have occurred and be continuing, then the Holder may, without further notice to the Company, declare the principal amount holder of this Note may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the time outstanding, and all other amounts payable under specific performance of any covenant or agreement contained in this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that or in case the Principal aid of the exercise of any power granted in this Note, or the holder of this Note becomes may proceed to enforce the payment of all sums due and payable by declaration upon this Note or otherwise, then to enforce any other legal or equitable right of the Company will pay in cash to the Holder holder of this Note, .
8.3. No remedy herein conferred upon the whole amount that then holder hereof is intended to be exclusive of any other remedy and each and every such remedy shall have become due be cumulative and payable on this Note for Principal. In case the Company shall fail forthwith be in addition to pay such amount, the Holder may commence an action every other remedy given hereunder or proceeding now or hereafter existing at law or in equity for or by statute or otherwise.
8.4. No course of dealing between the collection Corporation and the holder hereof or any delay on the part of the sums so due and unpaid, and may prosecute holder hereof in exercising any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablerights hereunder shall operate as a waiver of any rights of any holder hereof.
Appears in 3 contracts
Samples: Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. Section 9.1 All Obligations shall be, at the Bank’s option, immediately due and payable without notice or demand (anotwithstanding any deferred or installment payments allowed, if any, by any instrument evidencing or relating to the Obligations) Any and any provision of this Agreement or any supplement hereto, as to future loans and advances by the Bank shall, at the Bank’s option, terminate forthwith, upon the termination or non-renewal of this Agreement or upon the occurrence and continuation following written notice thereof by the Bank to the Borrower of any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event "Events of Default”"):
(a) if the Borrower shall (i) The Company fail to pay to the Bank when due any amounts owing to the Bank under any Obligation, and in the case of any amount other than an amount of principal or interest in respect of any Advance and any such amounts remain unpaid for more than ten (10) days from the due date, (ii) shall breach any of the terms, covenants, conditions or provisions of this Agreement, any supplement hereto or any subsidiary other Loan Document and such failure shall continue for more than ten (A10) days, or (iii) shall institute breach any proceeding of the terms, covenants, conditions or voluntary case seeking provisions of any document evidencing or governing any indebtedness between any other third person or entity and the Borrower and as a result of such breach, such third party shall and has or shall be entitled to adjudicate it bankrupt accelerate such indebtedness and Borrower has not cured such events, or (iv) Borrower shall breach any of the terms, covenants, conditions or provisions of any other agreement between any other third person or entity and the Borrower and as a result of such breach, such third party shall or shall be entitled to terminate such agreement and the termination of such agreement would result in a Material Adverse Change;
(b) the occurrence and continuation of an Overadvance for more than ten (10) days following the Bank’s written notice to Borrower of such Overadvance;
(c) if any representation, warranty, or statement of fact made to the Bank at any time by the Borrower or on the Borrower’s behalf is false or misleading in any material respect;
(d) if (i) the Borrower or Guarantor shall become insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating fail to bankruptcy, insolvency or reorganization or relief of debtors, or seeking meet the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its their debts as such debts become duethey mature, call a meeting of creditors or shall admit in writing its inability to apply its debts generally; (C) shall have a creditors' committee appointed, make a general an assignment for the benefit of creditors; , commence or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted have commenced against the Company seeking to adjudicate it a bankrupt Borrower or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for them any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at for relief under any bankruptcy law or (and, in equity for the collection case of the sums so due and unpaid, and may prosecute any such action or proceeding commenced against the Borrower such action or proceeding shall not be dismissed within 60 days), or (ii) a lien or encumbrance of any type or nature attaches to the assets of the Borrower or the Collateral and is not released or removed within fifteen (15) days; or (iii) a judgment is rendered against the Borrower or Guarantor in excess of $250,000.00 that is not fully covered by insurance or which is not satisfied and paid within thirty (30) days after entry thereof or the execution or other enforcement thereof stayed, or (iv) the Borrower suspends or discontinues doing business for any reason, or if a receiver, custodian or trustee of any kind is appointed for the Borrower or any of the Borrower’s or assets or properties;
(e) if there shall be a Material Adverse Change from the date hereof; or
(f) if at any time the Bank shall, in the Bank’s commercially reasonable discretion, consider the Obligations insecure or any part of the Collateral unsafe, insecure or insufficient and the Borrower shall, on the Bank’s demand, be unable to furnish other Collateral or make payment on account, satisfactory to the Bank.
Section 9.2 Upon the occurrence and continuation of any Event of Default and at any time thereafter during the continuance of such Event of Default, the Bank shall have the right (in addition to any other rights the Bank may have under this Agreement, any supplement hereto or otherwise available under applicable law) without notice to the Borrower, at any time and from time to time, in the Bank’s discretion, with or without judicial process or the aid or assistance or others and without cost to the Bank to appropriate, set off and apply to the payment of any or all of the Obligations, any or all Collateral, in such manner as the Bank shall in the Bank’s sole discretion determine; to enforce payment of any Collateral; to settle, compromise or release in whole or in part, any amounts owing on the Collateral; to prosecute any action, suit or proceeding with respect to the Collateral; to extend the time of payment of any and all Collateral; to make allowances and adjustments with respect thereto; to issue credits in the Bank’s or the Borrower’s name; to sell, assign and deliver the Collateral (or any part thereof) at public or private sale, at broker's board, for cash, upon credit or otherwise, at the Bank’s sole option and discretion, and the Bank may bid or become purchaser at any such sale, if public, free from any right of redemption which is hereby expressly waived; and, with respect to the Inventory or Equipment, to enter upon any premises on or in which any of the Inventory or Equipment may be located and, without resistance or interference by the Borrower, take possession of the Inventory and the Equipment; to complete processing, manufacturing and repair of all or any portion of the Inventory; to sell, foreclose or otherwise dispose of any part or all of the Inventory and the Equipment on or in any of the Borrower’s premises or premises of any other party; to require the Borrower, at the Borrower’s expense, to assemble and make available to the Bank any part or all of the Inventory and the Equipment at any place and time designated by the Bank; and to remove any or all of the Inventory and the Equipment from any premises on or in which the same may be located, for the purpose of effecting the sale, foreclosure or other disposition thereof or for any other purpose.
Section 9.3 In the event the Bank seeks to take possession of all or any portion of the Collateral by judicial process, the Borrower irrevocably waive: (a) the posting of any bond, surety or security with respect thereto which might otherwise be required, (b) any demand for possession prior to the commencement of any suit or action to recover the Collateral, and (c) any requirement that the Bank retain possession and not dispose of any Collateral until after trial or final decree against Company judgment.
Section 9.4 If notice of the intended disposition of Collateral is required by law, the Borrower agrees that the giving of seven (7) days notice by the Bank (unless a shorter period of time is permitted under the UCC), sent by ordinary mail, postage prepaid, to the Borrower’s address set forth herein, designating the place and time of any public sale or of the time after which any private sale or other obligor upon this Noteintended disposition of the Collateral is to be made, wherever situatedshall be deemed to be reasonable notice thereof and the Borrower waive any other notice with respect thereto.
Section 9.5 The Bank shall have no obligation to clean-up or otherwise prepare the Collateral for sale.
Section 9.6 The Bank may sell the Collateral without giving any warranties as to the Collateral. The Bank may disclaim any warranties of title or the like.
Section 9.7 To the extent that applicable law imposes duties on the Bank to exercise remedies in a commercially reasonable manner, the monies adjudicated Borrower acknowledges and agrees that it is not commercially unreasonable for the Bank (a) to fail to incur expenses reasonably deemed significant by the Bank to prepare Collateral for disposition or decreed otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be payabledisposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Debtors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other persons, whether or not in the same business as the undersigned, for expressions of interest in acquiring all or any portion of the Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (h) to dispose of Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, (k) to purchase insurance or credit enhancements to insure the Bank against risks of loss, collection or disposition of Collateral or to provide the Bank a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Bank, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Bank in the collection or disposition of any of the Collateral. The Borrower acknowledges that the purpose of this Section is to provide non-exhaustive indications of what actions or omissions by the Bank would not be commercially unreasonable in the Bank’s exercise of remedies against the Collateral and that other actions or omissions by the Bank shall not be deemed commercially unreasonable solely on account of not being indicated in this Section. Without limitation upon the foregoing, nothing contained in this Section shall be construed to grant any rights to the Borrower or to impose any duties on the Bank that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section.
Section 9.8 The Bank shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that the Borrower lawfully may, the Borrower hereby agrees that the Borrower will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Bank’s rights under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that the Borrower lawfully may, the Borrower hereby irrevocably waives the benefits of all such laws.
Section 9.9 The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by the Bank to the payment of the Obligations in such order as the Bank may elect, and the Borrower shall remain liable to the Bank for any deficiency. Without limiting the generality of the foregoing, if the Bank enters into any credit transaction, directly or indirectly, in connection with the disposition of any Collateral, the Bank shall have the option, at any time, in the Bank’s sole discretion, to reduce the Obligations by the principal amount of such credit transaction or to defer the reduction thereof until actual receipt by the Bank of cash or other immediately available funds in connection therewith.
Section 9.10 The enumeration of the foregoing rights and remedies is not intended to be exclusive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies the Bank may have under the UCC or other applicable law. The Bank shall have the right, in the Bank’s sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Collateral is to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative.
Section 9.11 No act (other than a waiver in writing), failure or delay by the Bank shall constitute a waiver of any of the Bank’s rights and remedies. No single or partial waiver by the Bank of any provision of this Agreement or any supplement hereto, or breach or default thereunder, or of any right or remedy which the Bank may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion.
Section 9.12 Upon the occurrence and continuation of an Event of Default and following issuance by the Bank of a written notice with right to cure, all or any one or more of the rights, powers, privileges and other remedies available to the Bank against the Obligors under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, the Obligors or at law, equity or otherwise may be exercised by the Bank at any time and from time to time, whether or not the Bank shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan documents with respect to the Collateral. Any such actions taken by the Bank may be pursued independently, singly, successively, together or otherwise, at such time and in such order as the Bank may determine in its sole and absolute discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of the Bank permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, the Obligors agree that if an Event of Default exists (a) the Bank is not subject to any “one action” or “election of remedies” law or rule, and (b) all liens and other rights, remedies or privileges provided to the Bank shall remain in full force and effect until the Bank has exhausted all of its remedies resulting in the satisfaction and payment in full of all Obligations.
Section 9.13 The Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Collateral and any and all notices or demands whatsoever (except as expressly provided herein). The Bank may, at all times, proceed directly against the Borrower to enforce payment of the Obligations and shall not be required to take any action of any kind to preserve, collect or protect the Bank’s or the Borrower’s rights in the Collateral.
Appears in 2 contracts
Samples: Loan and Security Agreement (Precision Aerospace Components, Inc.), Loan and Security Agreement (Precision Aerospace Components, Inc.)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event "Events of Default”"):
(ia) The Company the Borrower shall fail to pay the principal, or interest on, the Note or any subsidiary other amount due thereunder or under this Agreement within five days after the date when such payment was due; or
(Ab) the Obligors shall institute fail to observe or perform any proceeding term, covenant or voluntary case seeking agreement contained in the Loan Documents (other than the Note) and such failure shall continue uncured for a period of 30 days after the earlier of (1) the date of which the Bank has given written notice of such failure to adjudicate it bankrupt or insolventthe relevant Obligor, or seeking dissolution(2) the date on which an executive officer of any Obligor otherwise became aware of such failure; or
(c) any representation or warranty made by any Obligor in this Agreement or the other Loan Documents, liquidationor otherwise in writing in connection with the Loan, winding upshall prove to have been false, reorganizationincorrect or misleading in any material respect on the date when made; or
(d) any of the Loan Documents shall cease for any reason to be in full force and effect or the enforceability thereof shall be challenged or disputed by any Obligor; or
(e) any Obligor or any of their Subsidiaries becomes insolvent or makes an assignment for the benefit of creditors, arrangement, adjustment, protection, relief or composition any petition is filed by or against any Obligor or any of it or its debts their Subsidiaries under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry provision of any order for relief law or the appointment of a receiver, trustee, custodian statute alleging that such Person is insolvent or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generallythey mature; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(iif) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief judgment against it any Obligor or any of their Subsidiaries in an amount exceeding $750,000 or the appointment issuing of a receiver, trustee, custodian any attachment or other similar official for it garnishment against any property of any Obligor or for any substantial part of its property) shall occurtheir Subsidiaries in respect of indebtedness of more than $750,000; or
(iiig) The Company any Obligor or any Subsidiary of any Obligor shall fail to pay when due (after giving effect to any grace period applicable thereto), any principal of, premium (if any) on or interest on any other indebtedness of such Obligor or Subsidiary, or the occurrence of any part default under any mortgage, agreement or other instrument under or pursuant to which such indebtedness is incurred, secured, or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto; or
(h) any dissolution, merger, consolidation or reorganization of any Obligor or any of their Subsidiaries, except as expressly permitted by this Agreement and except that any Subsidiary of the Principal when due hereunder;Company may merge into or consolidate with or transfer assets to any other Subsidiary of the Company; or
(bi) If an Event of Default described above has occurred, then the Holder may, without further notice any information furnished in writing to the CompanyBank by any Obligor in connection with the Loan or the Guaranty shall prove to have been false, declare incorrect or misleading in any material respect on the principal amount of this date when made; then, and in any such event, the Note at the time outstanding, and all interest thereon and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts Agreement shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes immediately due and payable upon declaration to such effect delivered by declaration or otherwise, then the Company will pay in cash Bank to the Holder Borrower; provided that upon the happening of this Notean Event of Default specified in section 6.01(e), the whole amount that then Note and all interest thereon and all other amounts payable thereunder shall have become be immediately due and payable on this Note for Principalwithout declaration or other notice to any Obligor. In case the Company shall fail forthwith to pay such amountThereupon, the Holder may commence an action Bank shall have the right to charge and accrue interest at the applicable Default Rate and shall have all of the rights and remedies available to it under the Loan Documents or proceeding otherwise at law or in equity for the collection equity. The Obligors expressly waive any presentment, demand, protest or further notice of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablekind.
Appears in 2 contracts
Samples: Term Loan Agreement (Central Sprinkler Corp), Term Loan Agreement (Central Sprinkler Corp)
Events of Default and Remedies. 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred and be continuing shall constitute an event business of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or the calling of a general meeting of the creditors of the Company for any substantial part purposes of its property, or shall consent to compromising the commencement against it debts and obligations of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in Company;
(b) the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit Company admits in writing its inability to apply generally pay its debts generally; as they mature;
(Cc) the commencement by the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law, provided, however, that such Default shall make a general assignment for not be deemed an Event of Default if the benefit proceeding, petition, case or arrangement is commenced or supported by creditors by creditors holding $2,500,000 or less of creditors; indebtedness and is dismissed within 60 days of the filing of, or the commencement of, such petition, case, proceeding or arrangement;
(De) shall take material breach by the Company of any action warranty, representation or covenant contained herein (other than those referred to authorize in sub-paragraph f below) or effect in any other written agreement between the Company or CITBC relating to this Financing Agreement, provided that such Default by the Company of any of the actions set forth above warranties, representations or covenants referred in this subsection 4(a)(iclause e shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CITBC's satisfaction for a period of fifteen (15) Business Days from the date of such Default;
(f) breach by the Company of any warranty, representation or covenant of Section 3, Paragraphs 3 (other than the third sentence of paragraph 3) and 4; Section 6, Paragraphs 3 and 4 (other than the first sentence of paragraph 4); Xxxxxxx 0, Xxxxxxxxxx 0,0,0, and 9 through 11 (other than 10E as it relates to corporate good standing status);
(g) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit CITBC from charging such amounts to the Company's account on the due date thereof;
(h) Company shall i) engage in any "prohibited transaction" as defined in ERISA, ii) Any have any "accumulated funding deficiency" as defined in ERISA, iii) have any Reportable Event as defined in ERISA, iv) terminate any Plan, as defined in ERISA or v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventseek appointment, or seeking dissolutionis appointed, liquidationas trustee or administrator of any Plan, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertyas defined in ERISA, and either with respect to this sub-paragraph h such proceeding shall not have been dismissed event or shall not have been stayed condition x) remains uncured for a period of sixty (6060 days from date of occurrence and y) days could reasonably be expected to subject the Company to any tax, penalty or any other liability materially adverse to the business, operations or financial condition of the actions sought in such proceeding Company;
(including, i) without limitationthe prior written consent of CITBC, the entry Company shall x) amend or modify the Senior Unsecured Debt, any Subordinated Debt, or y) make any payment on account of any order Subordinated Debt except as permitted in the applicable Subordination Agreement or on account of the Senior Unsecured Debt except for relief against it regularly scheduled payments (but no prepayments or redemptions, including optional redemptions or those arising due to a Change of Control under and as defined in the appointment Senior Unsecured Debt) as contemplated under the Indenture evidencing the Senior Unsecured Debt as in effect as of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurthe date hereof; or
(iiij) The Company shall fail the occurrence of any default or event of default (after giving effect to pay any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt, (y) the Senior Unsecured Debt, or (z) any part other Indebtedness of the Principal when Company having a principal amount in excess of $1,000,000 if the effect of such default or event of default is to permit the holder or holders of such Subordinated Debt, Senior Unsecured Debt or other Indebtedness, as the case may be, to cause the same to become or be declared due hereunder;and payable prior to its stated maturity or (except in the case of the Senior Unsecured Debt relating to the March 2000 SEC filing) charge an increased rate of interest.
(b) If 2. Upon the occurrence of a Default and/or an Event of Default, at the option of CITBC, all loans and advances provided for in Sections 3 and 5 of this Financing Agreement shall be thereafter in CITBC's sole discretion and the obligation of CITBC to make revolving loans and/or open Letters of Credit shall cease unless such Default described above is cured to CITBC's reasonable satisfaction within the applicable grace period or Event of Default is waived by CITBC and at the option of CITBC upon the occurrence of an Event of Default: i) all Obligations shall upon notice (provided, however, that no such notice is required if the Event of Default is the Event of Default listed in paragraph 1(c) or 1(d) of this Section 10) become immediately due and payable; ii) CITBC may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement; provided
(a) the CITBC has occurredgiven notice of the imposition of the Default Rate of Interest, then provided, however, that no notice is required if the Holder may, without further Event of Default is the Event listed in paragraph 1(c) or 1(d) of this Section 10 and b) the Company has failed to cure the Event of Default within ten (10) Business Days after x) CITBC deposited such notice in the United States mail or y) the occurrence of the Event of Default listed in paragraph 1(c) or 1(d) of this Section 10; and iii) CITBC may immediately terminate this Financing Agreement upon notice to the Company, declare provided, however, that no notice of termination is required if the principal amount Event of Default is the Event listed in paragraph 1(c) or 1(d) of this Note Section 10. Notwithstanding anything herein contained to the contrary, if CITBC waives all Events of Default, then by written notice to the Company, the acceleration of the Obligations will be rescinded and all remedies and actions then being exercised by CITBC shall cease. The exercise of any option is not exclusive of any other option which may be exercised at any time by CITBC.
3. Immediately upon the occurrence of any Event of Default, CITBC may to the extent permitted by law: (a) remove from any premises where same may be located any and all documents, instruments, files and records relating to the Accounts, or CITBC may use, at the time outstandingCompany's expense, such of the Company's personnel, supplies or space at the Company's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or CITBC, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts payable under this Note to be forthwith due owing on any Accounts and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
issue credits in the name of the Company or CITBC; (c) The Company covenants that in case sell, assign and deliver the Principal of the Note becomes due Collateral and payable by declaration any returned, reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CITBC's sole option and discretion, and, to the extent permitted by applicable law, CITBC may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory and Equipment without judicial process, and to enter any premises where any Inventory and Equipment may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise, to the extent permitted by applicable law. CITBC shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the name of the Company will pay or CITBC, or in the name of such other party as CITBC may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as CITBC in its sole discretion may deem advisable, and CITBC shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, CITBC shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CITBC shall deem appropriate. The Company agrees, at the request of CITBC, to assemble the Inventory and Equipment and to make it available to CITBC at premises of the Company or such other location reasonably designated by CITBC and to make available to CITBC the premises and facilities of the Company for the purpose of CITBC's taking possession of, removing or putting the Inventory and Equipment in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) Business Days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CITBC's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by CITBC to the Holder payment of this Notethe Company's Obligations, the whole amount that then shall have whether due or to become due due, in such order as CITBC may elect, and payable on this Note for Principal. In case the Company shall fail forthwith remain liable to pay such amountCITBC for any deficiencies, and CITBC in turn agrees to remit to the Holder may commence an action Company or proceeding at law its successors or in equity for the collection assigns, any surplus resulting therefrom. The enumeration of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed foregoing rights is not intended to be payableexhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative.
Appears in 2 contracts
Samples: Financing Agreement (Diamond Triumph Auto Glass Inc), Financing Agreement (Diamond Triumph Auto Glass Inc)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurfederal bankruptcy law; or
(iii4) Any representation or warranty made by the Borrower in any Credit Document shall be false or misleading in any material respect on the date as of which made (or deemed made); or
(5) Any default by the Borrower shall occur in the performance or observance of any term, condition, or provision contained in any Credit Document and not referred to in clauses (1) through (4) above, which default shall continue for thirty (30) days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document; or
(7) Default in the payment of principal of or interest on any other obligation of the Borrower for money borrowed (or any obligation under any conditional sale or other title retention agreement or any obligation secured by purchase money mortgage or deed to secure debt or any obligation under notes payable or drafts accepted representing extensions of credit or on any capitalized lease obligation), or default in the performance of any other agreement, term, or condition contained in any contract under which any such obligation is created, guaranteed, or secured if the effect of such default is to cause such obligation to become due prior to its stated maturity; provided that in each and every case noted above the aggregate then outstanding principal balance of the obligation involved (or all such obligations combined) must equal or exceed $100,000; or
(8) Default in the payment of principal of or interest on any obligation of the Borrower for money borrowed from the Lender (other than the Loan) or default in the performance of any other agreement, term, or condition contained in any contract under which any such obligation is created, guaranteed, or secured if the effect of such default is to entitle the Lender to then cause such obligation to become due prior to its stated maturity (the parties intend that a default may constitute an Event of Default under this paragraph (8) even if such default would not constitute an Event of Default under paragraph (7) immediately above); or
(9) The Company shall fail to pay the any part dissolution of the Principal when due hereunder;Borrower; or
(10) Any material adverse change in the Borrower’s financial condition or means or ability to perform under the Credit Documents; or
(11) The occurrence of any other event as a result of which the Lender in good faith believes that the prospect of payment in full of the Loan is impaired.
(b) If Upon the occurrence of an Event of Default described above has occurredDefault, then the Holder mayLender, at its option, without further demand or notice to the Companyof any kind, may declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith Loan immediately due and payable, whereupon such all outstanding principal and all such amounts accrued interest shall become and be forthwith immediately due and payable.
(c) The Company covenants that in case Upon the Principal occurrence of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder an Event of this NoteDefault, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith Lender, without notice or demand of any kind, may from time to pay such amount, the Holder may commence an time take whatever action or proceeding at law or in equity for or under the collection terms of the sums so Credit Documents may appear necessary or desirable to collect the Loan and other amounts payable by the Borrower hereunder then due or thereafter to become due, or to enforce performance and unpaidobservance of any obligation, agreement, or covenant of the Borrower under the Credit Documents.
(d) In the event of a failure of the Borrower to pay any amounts due to the Lender under the Credit Documents within 15 days of the due date thereof, the Lender shall perform its duty under Section 50-23-20 of the Official Code of Georgia Annotated to notify the state treasurer of such failure, and the Lender may prosecute apply any funds allotted to the Borrower that are withheld pursuant to Section 50-23-20 of the Official Code of Georgia Annotated to the payment of the overdue amounts under the Credit Documents.
(e) Upon the occurrence of an Event of Default, the Lender may, in its discretion, by written notice to the Borrower, terminate its remaining commitment (if any) hereunder to make any further advances of the Loan, whereupon any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablecommitment shall terminate immediately.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its propertythe property of the Borrower, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or the creditors of the Borrower, (D) shall commence a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under the Bankruptcy Code, or (G) take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower, (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower, or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurBankruptcy Code; or
(iii4) Any representation or warranty made by the Borrower in any Credit Document shall be false or misleading in any material respect on the date as of which made (or deemed made); or
(5) Any default by the Borrower shall occur in the performance or observance of any term, condition, or provision contained in any Credit Document and not referred to in clauses (1) through (4) above, which default shall continue for thirty (30) days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document; or
(7) The Company shall fail to pay occurrence of an event of default under the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableLease.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Loan Agreement (Inhibitex Inc), Loan Agreement (Inhibitex Inc)
Events of Default and Remedies. (a) Any one or more of the The following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):" by the Debtor hereunder:
(1) An Event of Default (as defined therein) shall occur under the Note, after giving effect to all notice provisions and cure periods provided for therein;
(2) Failure by the Debtor to comply with or perform any provision of this Agreement, PROVIDED, however, that with respect to a failure by the Debtor to comply with any of the provisions of Section 2(c), (e), (i) The Company and (j) of this Agreement, such failure is not remedied within thirty (30) days after the Debtor's receipt of written notice of same;
(3) Any representation of Debtor set forth herein shall have been false or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer misleading in any such case or proceeding commenced against it consenting to or acquiescing in the commencement material respect; or
(4) Subjection of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking Collateral to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief levy of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian execution or other similar official for the Company judicial process, which is not released, discharged, dismissed, stayed or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed fully bonded for a period of sixty thirty (6030) days or any of more after its entry, issue or stay, as the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;case may be.
(b) If an Event Upon any default by the Debtor hereunder, the Lenders shall have all the rights, remedies and privileges with respect to repossession, retention and sale of Default described above has occurredany or all of the Collateral of the Debtor and disposition of the proceeds as are accorded by the applicable sections of the Uniform Commercial Code, then as from time to time in effect in the Holder may, without further notice to State of New York (the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable"Uniform Commercial Code").
(c) The Company covenants that in case Upon any default by the Principal Debtor hereunder and upon demand of the Note becomes due Lenders, the Debtor shall assemble the Collateral and payable by declaration or otherwise, then the Company will pay in cash make it available to the Holder Lenders at the place and at the time designated in the demand.
(d) If the Debtor shall default in the performance of any of the provisions of this NoteAgreement on the Debtor's part to be performed, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder Lenders may commence an action or proceeding at law or in equity perform same for the collection of Debtor's accounts and any monies expended in so doing shall be chargeable with interest to the sums so due Debtor and unpaid, and may prosecute any such action or proceeding added to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed indebtedness to be payablethe Lenders secured hereby.
Appears in 2 contracts
Samples: Loan Agreement (Utix Group Inc), Loan Agreement (Utix Group Inc)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note or the subscription agreement executed by the Company and the Holder as of the date hereof and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $100,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Note (Molecular Diagnostics Inc), Note (Molecular Diagnostics Inc)
Events of Default and Remedies. (a) Any An “EVENT OF DEFAULT” shall exist hereunder if any one or more of the following events which shall have occurred occur and be continuing continuing: (a) the Company shall constitute an event of default (“Event of Default”):
(i) The Company or fail to pay when due any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventprincipal of, or seeking dissolutioninterest upon, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief this Note or composition the Obligation and such failure shall continue for five (5) Business Days after such payment became due; or (b) the Company shall fail to perform any of it the covenants or its debts under agreements contained herein or in any law relating other Loan Document and such failure shall continue unremedied for thirty (30) days after written notice thereof; or (c) any representation or warranty made by the Company to bankruptcy, insolvency Lender herein or reorganization in any other Loan Document shall prove to be untrue or relief of debtors, inaccurate in any material respect; or seeking (d) the entry of any order Company shall (1) apply for relief or consent to the appointment of a receiver, trustee, custodian intervener, custodian, or other similar official for such the Company liquidator of itself or any subsidiary of all or for any a substantial part of its propertyassets, (2) be adjudicated bankrupt or shall consent to the commencement against insolvent or file a voluntary petition for bankruptcy or admit in writing that it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be is unable to pay its debts as such debts they become due, or shall admit in writing its inability to apply its debts generally; (C3) shall make a general assignment for the benefit of creditors, (4) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, or (5) file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding, or take corporate action for the purpose of effecting any of the foregoing; or (De) an order, judgment, or decree shall take be entered by any action to authorize court of competent jurisdiction or effect any other competent authority approving a petition seeking reorganization of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of appointing a receiver, trustee, custodian intervener, or other similar official for liquidator of the Company Company, or for any substantial part of all or substantially all of its propertyassets, and either such proceeding order, judgment, or decree shall not have been dismissed or shall not have been stayed continue unstayed and in effect for a period of sixty thirty (6030) days; or (f) the dissolution or liquidation of the Company; or (g) a Change of Control; or (h) the Company shall default in the payment of any indebtedness of such Company in excess of $250,000 individually or in the aggregate or default shall occur in respect of any note or credit agreement relating to any such indebtedness and such default shall continue for more than the period of grace, if any, specified therein; or (i) any final judgment(s) for the payment of money in excess of the sum of $250,000 individually or in the aggregate shall be rendered against the Company and such judgment(s) shall not be satisfied or discharged at least ten (10) days or prior to the date on which any of the actions sought in Company’s assets could be lawfully sold to satisfy such proceeding (including, without limitation, judgment(s). Upon the entry occurrence of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredhereunder, then the Holder holder hereof may, at its option, (i) declare the entire unpaid principal balance and accrued interest upon the Obligation to be immediately due and payable without further presentment or notice of any kind which the Company waives pursuant to SECTION 3 herein, and/or (ii) pursue and enforce any of Lender’s rights and remedies available pursuant to any applicable law or agreement; provided, however, in the case of any Event of Default specified in PARAGRAPH (d) or (e) of this SECTION 4 with respect to the Company, declare without any notice to the Company or any other act by Xxxxxx, the principal amount of balance and interest accrued on this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes immediately due and payable by declaration or otherwisewithout presentment, then the Company will pay in cash to the Holder of this Notedemand, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amountprotest, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notenotice of any kind, wherever situated, all of which are hereby waived by the monies adjudicated or decreed to be payableCompany.
Appears in 2 contracts
Samples: Convertible Note (Avicena Group, Inc.), Convertible Note (Avicena Group, Inc.)
Events of Default and Remedies. (a) Any If any one or more of the following events which Events of Default shall have occurred and be continuing occur or shall constitute an event of exist, the Agent may then or at any time thereafter, so long as such default (“Event of Default”):
(i) The Company shall continue, foreclose the lien or security interest in the Collateral in any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventway permitted by law, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating upon fifteen (15) days prior written notice to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or the Subsidiary, sell any subsidiary or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for any substantial part of cash or on credit, as the Agent, in its propertysole discretion, may elect, or shall consent to sell any or all Collateral at public auction, either for cash or on credit, as the commencement against it of such a proceeding or caseAgent, or shall file an answer in its sole discretion, may elect, and at any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitationsale, the entry Agent may bid for and become the purchaser of any order for relief against it or all such Collateral. Pending any such action the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay Agent may liquidate the any part of the Principal when due hereunder;Collateral.
(b) If an Event any one or more of the Events of Default described above has occurredshall occur or shall exist, then the Holder mayAgents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to Collateral or any securities, guarantees or insurance applying thereon, without further notice to or the consent of the Company or the Subsidiary, without affecting the Company, declare ’s or the principal amount of this Note at the time outstanding, and all other amounts payable Subsidiary’s liability under this Note Agreement or the Notes. Each of the Company and the Subsidiary waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of its contract rights or Collateral and any other notices to which the Company or the Subsidiary may be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableentitled.
(c) The Company covenants that in case the Principal If any one or more of the Note becomes due Events of Default shall occur or shall exist and payable by declaration or otherwisebe continuing, then the Company will pay in cash to the Holder of this Noteany such event, the whole amount that then Agent shall have become due such additional rights and payable on this Note for Principal. In case remedies in respect of the Company shall fail forthwith to pay Collateral or any portion thereof as are provided by the Code and such amount, the Holder other rights and remedies in respect thereof which it may commence an action or proceeding have at law or in equity for or under this Agreement, including without limitation the collection right to enter any premises where Equipment, Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Company and the Subsidiary expressly waive.
(d) The Agent shall apply the Proceeds of any sale or liquidation of the sums so due Collateral, and, subject to Section 5, any Proceeds received by the Agent from insurance, first to the payment of the reasonable costs and unpaidexpenses incurred by the Agent in connection with such sale or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to the payment of the Notes, pro rata , whether on account of principal or interest or otherwise as the Agent, in its sole discretion, may elect, and may prosecute any such action or proceeding then to judgment or final decree against pay the balance, if any, to the Company or other obligor upon this Note, wherever situatedthe Subsidiary or as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the monies adjudicated Company shall be liable for any deficiency.
(e) Upon the occurrence of any Event of Default, the Company or decreed the Subsidiary shall promptly upon written demand by the Agent assemble the Equipment, Inventory and Fixtures and make them available to the Buyers at a place or places to be payabledesignated by the Agent The rights of the Agent under this paragraph to have the Equipment, Inventory and Fixtures assembled and made available to it is of the essence of this Agreement and the Agent may, at its election, enforce such right by an action in equity for injunctive relief or specific performance, without the requirement of a bond.
Appears in 2 contracts
Samples: Security Agreement (Nevada Gold Holdings, Inc.), Security Agreement (Nevada Gold Holdings, Inc.)
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred and be continuing shall constitute (each an event of default (“Event of Default”):) shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Loan or make any other payment of fees or other amounts payable under this Agreement or the Receipt within five Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or
(i) The Company Borrower shall fail to perform or observe any term, covenant or agreement contained in Sections 5.04, 5.05, 5.08, 5.09 or 5.10 or Article VI, or (ii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed if such failure pursuant to this clause (ii) shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower by the Administrative Agent or any subsidiary Lender; or
(Ad) The Borrower or any of its Subsidiaries shall institute fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $75,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than (i) by a regularly scheduled required prepayment or redemption or (ii) a prepayment or redemption required solely as a result of the proceeds of such Debt not having been applied to consummate a transaction or toward any other purpose for which such Debt was incurred), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or voluntary case against the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company it or for any substantial part of its propertyproperty and, and in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall not have been dismissed remain undismissed or shall not have been stayed unstayed for a period of sixty (60) days 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of any an order for relief against it against, or the appointment of a receiver, trustee, custodian or other similar official for for, it or for any substantial part of its property) shall occur; or the Borrower or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment; or
(i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Voting Stock of the Borrower (or other securities convertible into such Voting Stock) representing 30% or more of the combined voting power of all Voting Stock of the Borrower; or (ii) during any period of up to 24 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such 24-month period were directors of the Borrower shall cease for any reason (other than due to death or disability) to constitute a majority of the board of directors of the Borrower (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of the Borrower or (y) nominated for election by a majority of the remaining members of the board of directors of the Borrower and thereafter elected as directors by the shareholders of the Borrower); or
(h) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $75,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) The Company the reorganization or termination of a Multiemployer Plan; then, and in any such event, the Administrative Agent (i) shall fail to pay at the any part request, or may with the consent, of the Principal when due hereunder;
(b) If an Event of Default described above has occurredRequired Lenders, then the Holder may, without further by notice to the CompanyBorrower, declare the principal amount obligation of this Note each Lender to make Loans to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the time outstandingrequest, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest thereon and all other amounts payable under this Note Agreement to be forthwith due and payable, whereupon the Loans, all such principal interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants , without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in case the Principal event of an actual or deemed entry of an order for relief with respect to the Note becomes Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Loans shall automatically be terminated and (B) the Loans, all such interest and all such amounts shall automatically become and be due and payable payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableBorrower.
Appears in 2 contracts
Samples: Loan Agreement (Dentsply International Inc /De/), Loan Agreement (Dentsply International Inc /De/)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $250,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Note (Accupoll Holding Corp), Note Agreement (Accupoll Holding Corp)
Events of Default and Remedies. 8.1. All Obligations shall be, at your option, immediately due and payable without notice or demand (anotwithstanding any deferred or first installment payments allowed, if any, by any instrument evidencing or relating to the Obligations) Any and any provision of this Agreement or any supplement hereto, as to future loans and advances by you shall, at your option, terminate forthwith, upon the termination or non-renewal of this Agreement or upon the occurrence of any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event "Events of Default”"):
(ia) The Company or If we shall fail to pay to you when due any subsidiary (A) shall institute any proceeding or voluntary case seeking Amounts owing to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts you under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its propertyObligation, or shall consent to breach any of the commencement against it terms, covenants, conditions or provisions of this Agreement, any supplement hereto or any other agreement between you and us or between any other third person or entity and us; (b) if any guarantor, endorser or other person liable on the Obligations shall terminate or breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such a proceeding or caseperson with, or shall file an answer in favor of, you or any other third person or entity; (c) if any representation, warranty, or statement of fact made to you at any time by us or on our behalf is false or misleading in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceedingmaterial respect; (d) if we, or any guarantor, endorser or other person liable on the Obligations, shall consent become insolvent, fail to meet our or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its their debts as such debts become duethey mature, call a meeting of creditors or shall admit in writing its inability to apply its debts generally; (C) shall have a creditors' committee appointed, make a general an assignment for the benefit of creditors, commence or have commenced against us or them any action or proceeding for relief under any bankruptcy law, or if a judgment is rendered against us or them, or if we or they suspend or discontinue doing business for any reason, or if a receiver, custodian or trustee of any kind is appointed for us or them or any of our or their respective properties; (e) if there shall be a material adverse change in our business, assets or condition (financial or otherwise) from the date hereof; (f) if there is any change in our majority control or majority ownership; or (Dg) shall take if at any action to authorize time you shall, in your sole discretion, consider the Obligations insecure or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;Collateral unsafe, insecure or insufficient and we shall not on your demand furnish other Collateral or make payment on account, satisfactory to you.
(b) If an 8.2. Upon the occurrence of any Event of Default described above has occurredand at any time thereafter, then you shall have the Holder mayright (in addition to any other rights you may have under this Agreement, any supplement hereto or otherwise), without further notice to us, to appropriate, set off and apply to the Companypayment of any or all of the Obligations, declare any or all Collateral, in each manner as you shall in your sole discretion determine, to enforce payment of any Collateral, to settle, compromise or release in whole or in part, any amounts owing on the Collateral, to prosecute any action, suit or proceeding with respect to the Collateral, to extend the time of payment of any and all Collateral, to make allowances and adjustments with respect thereto, to issue credits in your or our name, to sell, assign and deliver the Collateral (or any part thereof), at public or private sale, at broker's board, for cash, upon credit or otherwise, at your sole option and discretion, and you may bid or become purchaser at any such sale, if public, free from any right of redemption which is hereby expressly waived.
8.3. In the event you seek to take possession of all or any portion of the Collateral by judicial process, we irrevocably waive: (a) the posting of any bond, surety or security with respect thereto which might otherwise be required, (b) any demand for possession prior to the commencement of any suit or action to recover the Collateral, and (c) any requirement that you retain possession and not dispose of any Collateral until after trial or final judgment.
8.4. We agree that the giving of five (5) days notice by you, sent by ordinary mail, postage prepaid, to our address set forth below, designating the place and time of any public sale or of the time after which any private sale or other intended disposition of the Collateral is to be made, shall be deemed to be reasonable notice thereof and we waive any other notice with respect thereto.
8.5. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by you to the payment of the Obligations in such order as you may elect, and we shall remain liable to you for any deficiency. Without limiting the generality of the foregoing, if you enter into any credit transaction, directly or indirectly, in connection with the disposition of any Collateral, you shall have the option, at any time, in your sole discretion, to reduce the Obligations by the principal amount of this Note at such credit transaction or to defer the time outstandingreduction thereof until actual receipt by you of cash or other immediately available funds in connection therewith.
8.6. The enumeration of the foregoing rights and remedies is not intended to be exclusive, and all such rights and remedies are in addition to and not by way of limitation of any other amounts payable rights or remedies you may have under this Note the UCC or other applicable law. You shall have the right, in your sole discretion, to determine which rights and remedies, and in which order any of the same, are to be forthwith due exercised, and payableto determine which Collateral is to be proceeded against and in which order, whereupon such principal and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative.
8.7. No act, failure or delay by you shall constitute a waiver of any of your rights and remedies. No single or partial waiver by you of any provision of this Agreement or any supplement hereto, or breach or default thereunder, or of any right or remedy which you may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion.
8.8. We waive presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Collateral and any and all such amounts shall become and be forthwith due and payable.
notices or demands whatsoever (c) The Company covenants that in case the Principal except as expressly provided herein). You may, at all times, proceed directly against us to enforce payment of the Note becomes due Obligations and payable by declaration shall not be required to take any action of any kind to preserve, collect or otherwise, then protect your or our rights in the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCollateral.
Appears in 2 contracts
Samples: Loan Agreement (Pny Technologies Inc), Loan Agreement (Pny Technologies Inc)
Events of Default and Remedies. (a) 8.1 Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”)::
(ia) The default for a period of ten (10) days in the payment when due of principal or interest on the Note, whether at the stated maturity thereof or at any other time provided in this Agreement, or of any fee payable by the Company hereunder;
(b) default in the observance or performance of any covenant set forth in Section 7 hereof;
(c) default in the observance or performance of any other provision of the Loan Documents which is not remedied within thirty (30) days after notice thereof to the Company by the Bank;
(d) default shall occur under any evidence of indebtedness in an outstanding amount of not less than $10,000.00 issued, assumed or guaranteed by a Company or under any subsidiary indenture, agreement or other instrument under which the same may be issued and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such indebtedness without cure or waiver;
(Ae) shall institute any proceeding representation or voluntary case seeking to adjudicate it bankrupt or insolventwarranty made by the Company in the Loan Documents, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief in any statement or composition certificate furnished by a Company pursuant thereto or in connection with any advance made hereunder proves untrue in any material respect as of it the date of the issuance or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such making thereof;
(f) the Company becomes insolvent or any subsidiary or for any substantial part of bankrupt, admits in writing its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable inability to pay its debts as such debts become duethey mature, or shall admit in writing its inability to apply its debts generally; (C) shall make a general makes an assignment for the benefit of creditors; creditors or (D) shall take any action applies for or consents to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian trustee or other similar official receiver for it or for any part of its property;
(g) a trustee or receiver is appointed for the Company or for any substantial part of its property;
(h) bankruptcy, and either such proceeding shall reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors are instituted by or against the Company, and, if instituted against the Company, are consented to or are not have been dismissed or shall not have been stayed for a period of within sixty (60) days after such institution; and
(i) any default that occurs and is continuing by the Company or Checksmart Financial Company (“Checksmart”) under the Senior Secured Notes or the Syndicated Credit Agreement that entitles the holders of such obligations to accelerate the maturity thereof.
8.2 When any Event of Default described in Sections 8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) or 8.1(i) has occurred or is continuing, the Bank may take any or all of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orfollowing actions:
(iiia) The Company shall fail to pay terminate the any part remaining commitment hereunder of the Principal when due hereunderBank;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at and the time outstanding, and accrued interest on all other amounts payable under this Note sums outstanding hereunder to be forthwith due and payable, whereupon such and thereupon all of said sums, including both principal and all such amounts interest, shall be and become and be forthwith immediately due and payable.payable without further demand, presentment, protest or notice of any kind;
(c) The setoff against any and all accounts maintained by the Company covenants that with the Bank in case the Principal of the Note becomes order to pay all amounts due and payable owing to the Bank by declaration the Company.
8.3 When any Event of Default described in Sections 8.1(f), 8.1(g) or otherwise8.1(h) has occurred and is continuing, then the Company will pay in cash to the Holder of this Note, the whole amount that then all sums outstanding hereunder shall have immediately become due and payable on this Note for Principal. In case without presentment, demand, protest, or notice of any kind, and the obligation of the Bank to extend further credit pursuant to any of the terms hereof shall immediately terminate.
8.4 The Company shall fail forthwith agrees to pay such amountto the Bank all reasonable expenses incurred or paid by the Bank, including reasonable attorneys’ fees and court costs, in connection with the Holder may commence occurrence of any Event of Default or of an action or proceeding at law event which solely by the passage of time would constitute an Event of Default hereunder or in equity for connection with the collection enforcement of any of the sums so due and unpaid, and may prosecute terms of any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, of the monies adjudicated or decreed to be payableLoan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Reliant Software, Inc.), Credit Agreement (Community Choice Financial Inc.)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Any one or more Failure to comply with any of the material terms and conditions of this Agreement following events written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which shall have occurred in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and be continuing shall constitute fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an event interest in this Agreement so as to create a conflict of default (“Event of Default”):interest; and/or
(i) The Company Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or any subsidiary directive; and/or
(Aj) shall institute any proceeding Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or voluntary case seeking to adjudicate it involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiverreceiver of, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its propertythe Contractor if such appointment, adjudication, or shall consent to the commencement against it similar order or ruling remains in force or unstayed for a period of such a proceeding or casethirty (30) days, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply pay its debts generallygenerally as they become due; and/or
(Cl) shall make a general assignment for the benefit The Contractor’s level of creditors; or (D) shall take any action to authorize or effect any performance of the actions Services, in the reasonable judgment of the Authority falls below the standard of care set forth above in this subsection 4(a)(i);Article II hereof and/or
(iim) Any proceeding shall be instituted against The Contractor ceases to conduct business in the Company seeking normal course, and/or
(n) The Contractor fails to adjudicate it a bankrupt or insolventcomply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking subcontractor invoices for Services which the entry of an order for relief or Contractor has received payment from the appointment of a receiver, trustee, custodian or other similar official for Authority.
7.02 In the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredby the Contractor, then the Holder mayAuthority shall be entitled to exercise any and all remedies available at law and/or in equity, without further notice including, but not limited to the Companyright to seek and xxx for damages, declare the principal amount of any costs incurred to enforce, or attempt to enforce this Note at the time outstandingAgreement, and all other amounts payable under this Note to including reasonable attorneys fees, which enforcement shall not be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaidlimited, and may prosecute include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such action time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or proceeding could give rise to judgment or final decree against Company or other obligor upon this Note, wherever situated, additional damages. It is expressly understood that the monies adjudicated or decreed to be payableContractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 2 contracts
Samples: Design/Build Construction Services Agreement, Design/Build Construction Services Agreement
Events of Default and Remedies. 10.1 Notwithstanding anything herein above to the contrary, the Agent, with the concurrence of the Required Lenders, may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred business of the Material Obligors or any one of them, except pursuant to a Permitted Merger hereunder, or the calling of a meeting of the creditors of any of the Material Obligors for purposes of compromising the debts and be continuing shall constitute an event obligations of default such Material Obligors;
(“Event b) the failure of Default”):any of the Material Obligors to generally meet debts as they mature;
(i) The Company or the commencement by any subsidiary (A) shall institute of the Material Obligors of any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it any of the Material Obligors, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of any of the Material Obligors, as applicable, provided that such a involuntary proceeding shall not have been controverted within ten (10) days or caseshall not have been dismissed and vacated within sixty (60) days of commencement, or shall file an answer any of the actions sought 61 in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Material Obligors shall take any action to authorize or effect any of the actions set forth above in any such proceeding;
(d) breach by any of the Obligors in any material respect of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below), in the other Loan Documents or in any other written agreement between such Obligors or the Agent, provided that such breach by such Obligors of any of the warranties, representations or covenants referred in this subsection 4(a)(iclause (d) shall not be deemed to be an Event of Default unless and until such breach shall remain unremedied to the Agent's or the Required Lenders' satisfaction for a period of twenty (20) Business Days from the date of such breach; PROVIDED, HOWEVER, any breach by any Obligor of the covenants contained in Paragraph 7.8 of Section 7 hereof shall not be deemed to be an Event of Default unless and until such breach remains unremedied to the Agent's or Required Lenders' satisfaction for a period of ten (10) Business Days from the date of written notice of such breach from Agent to Parent;
(e) breach by any of the Obligors of any warranty, representation or covenant of Paragraphs 3.3 (other than the third sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, 7.9 through 7.11, 7.13 and 7.14 of Section 7 hereof;
(f) failure of any of the Obligors to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to any of the Companies' Revolving Loan Accounts on the due date thereof;
(g) a Change of Control (as defined in the May 29, 2001 Senior Subordinated Notes Indenture);
(h) any of the Obligors shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) Any proceeding shall be instituted against have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, for which the Company seeking requirement to adjudicate it a bankrupt or insolventprovide notice to the Pension Benefit Guaranty Corporation ("PBGC") has not been waived by the PBGC, (iv) terminate any "plan", as defined in ERISA, that is subject to title IV of ERISA, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors(v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or seeking the entry is appointed, as trustee or administrator of an order for relief or the appointment of a receiverany "plan", trustee, custodian or other similar official for the Company or for any substantial part of its propertyas defined in ERISA, and either with respect to this sub-paragraph (h) such proceeding shall not have been dismissed event or shall not have been stayed condition (x) remains uncured for a period of sixty thirty (6030) days from date of occurrence and (y) subjects the Obligors to any tax, penalty or other liability which could reasonably be expected to have a Material Adverse Effect;
(i) without the prior written consent of the Agent, any of the actions sought Obligors shall (x) amend or modify the Subordinated Debt in such proceeding (including, without limitation, any respect which materially and adversely 62 affects the entry rights of the Lenders or of any order other holders of Senior Debt (as defined therein), (y) except for relief against it Excluded Payments, make any payment on account of the Subordinated Debt except as permitted under the Senior Subordinated Notes Indentures or in a Subordination Agreement, or (z) except for Excluded Payments, prepay, in whole or in part, any of the appointment Senior Subordinated Debt;
(j) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Obligors, or any one of them, having a receiverprincipal amount in excess of $250,000; PROVIDED, trusteeHOWEVER, custodian any such default or other similar official for it event of default shall not be deemed an Event of Default hereunder unless and until (i) the holders of such debt accelerate the maturity thereof, or for any substantial part (ii) the Parent fails to deliver to Agent a written waiver of its propertysuch default or event of default from the holders of such debt within twenty (20) shall occurBusiness Days after the occurrence of such default or event of default; or
(iiik) The Company shall fail to pay the any part all of the Principal when due Capital Stock of Obligors (other than Parent) ceases to be beneficially owned by another Obligor, except as otherwise permitted hereunder; or
(l) if any Guarantor terminates its obligations under the Guaranty or otherwise fails to perform any of the terms of its Guaranty, all prior to termination of this Financing Agreement and payment in full of all Obligations except in connection with or as a result of a transaction permitted;
(bm) If any judgment or judgments aggregating in excess of $5,000,000 or any injunction or attachment is obtained or enforced against any Material Obligor and which remains unstayed for more than ten (10) Business Days and which could reasonably be expected to have a Material Adverse Effect.
10.2 Upon the occurrence and during the continuance of a Default and/or an Event of Default, upon the written direction of the Required Lenders the Agent shall declare that, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in the Agent's or the Required Lenders' sole discretion and the obligation of the Agent and the Lenders to make Revolving Loans and open Letters of Credit shall cease unless such Default described above or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Lenders' reasonable business judgement, and the Agent, upon the written direction of the Required Lenders after the occurrence and during the continuance of an Event of Default: (a) all Obligations shall become immediately due and payable; (b) the Agent may charge the Companies the lesser of (i) the Default Rate of Interest or (ii) the Maximum Legal Rate on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause "(b)" (i) the Agent has occurredgiven the Companies written notice of the Event of Default, then provided, however, that no notice is required if the Holder mayEvent of Default is the Event listed in Paragraph 10.1(c) of this Section 10, without further and (ii) the Companies have failed to cure the Event of Default within ten (10) days after (x) the Agent gave such notice pursuant to paragraph 12.6 below or (y) the occurrence of the Event of Default listed in Paragraph 10.1 (c) of this Section 10; and (c) 63 the Agent shall, upon the written direction of the Required Lenders, immediately terminate this Financing Agreement upon notice to the CompanyCompanies, declare provided, however, that no notice of termination is required if the principal amount Event of Default is the Event listed in Paragraph 10.1(c) of this Note Section 10. The exercise of any option is not exclusive of any other option which may be exercised at any time by the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableAgent and/or the Lenders.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Financing Agreement (Lone Star Technologies Inc), Financing Agreement (Lone Star Technologies Inc)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Medical Center shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for thirty (A30) days after written notice thereof to Medical Center by GKF provided, however, that if the nature of the default is such that it cannot reasonably be cured within the thirty (30) day period, the Medical Center shall institute any proceeding or voluntary case seeking not be deemed to adjudicate be in default if it bankrupt or insolventshall commence to cure the default within the thirty (30) day period and diligently effect the cure within a period not exceeding an additional thirty (30) days;
(d) Medical Center ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Medical Center seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Medical Center's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay not be vacated. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyMedical Center, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with a five percent (5%) increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default. In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 2 contracts
Samples: Lease Agreement (American Shared Hospital Services), Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Lessee fails to pay any installment of rent on or more before the tenth (10th) day following the date when Lessor notifies Lessee, in writing that such installment has not been paid;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Lessee shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Lessee hereunder and such failure shall continue uncured for (A10) shall institute any proceeding days after written notice thereof to Lessee by Lessor;
(d) Any representation or voluntary case seeking to adjudicate it bankrupt warranty made by Lessee herein or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case document or proceeding commenced against it consenting to or acquiescing certificate furnished in the commencement of such case or proceedingconnection herewith shall prove incorrect in any material respect;
(e) Lessee ceases doing business as a going concern, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general makes an assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either or if it or its shareholders shall take any action looking to its dissolution or liquidation; or
(f) Within thirty (30) days after the commencement of any proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding proceedings shall not have been dismissed dismissed, or shall not have been stayed for a period of sixty if within thirty (6030) days or any of after the actions sought in such proceeding (includingappointment, without limitationLessee's consent or acquiescence, the entry of any order for relief against trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its propertyassets and properties, such appointment shall not be vacated or vigorously, actively and continually protested by Lessee;
(g) The occurrence of any event or condition described in subsections (d) through (f) hereof with respect to any guarantor or any other party liable, in whole or in part, for performance of any of Lessee's obligations under this Lease. Upon the occurrence of an Event of Default, Lessor may at its option do any or all of the following: (i)By notice to Lessee terminate this Lease as to any or all Equipment Schedules; (ii)whether or not this Lease is terminated as to any or all Equipment Schedules, take possession of any or all of the Equipment listed on any or all Equipment "Schedules, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee, and Lessee hereby agrees, to return the Equipment to Lessor as provided in this Lease; (iii)recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, an amount equal to the present value of all monies to be paid by Lessee during the remainder of the Initial Term or any successive period then in effect, discounted at the rate of six percent (6%) per annum, which payment shall occurbecome immediately due and payable; or
and (iv)sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine without, except as provided below, any duty to account to Lessee (and Lessor shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar equipment owned or leased by Lessor). In any event, Lessee shall, without further demand, pay to Lessor an amount equal to all sums due and payable for all periods up to and including the date on which Lessor has declared this Lease to be in default. In the event that Lessee shall have paid to Lessor the liquidated damages referred to in clause (iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith sums then due and payable, whereupon such principal and Lessor hereby agrees to pay Lessee, promptly after receipt thereof, all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case rentals or proceeds received from the Principal reletting or sale of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Equipment to the Holder extent such rentals or proceeds are attributable to the balance of this Notethe Initial Term (after deduction of all expenses incurred by Lessor), said amount never to exceed the whole amount of the liquidated damages paid by Lessee. Lessee agrees that then Lessor shall have become due no obligation to sell or lease the Equipment and payable on this Note for Principal. In case shall not be required to give preference to the Company shall fail forthwith to pay such amountsale, the Holder may commence an action lease or proceeding at law or in equity for the collection other disposition of the sums so due and unpaidEquipment over the sale, and may prosecute any such action or proceeding to judgment or final decree against Company lease or other obligor upon this Notedisposition of similar equipment owned or leased by Lessor. Lessee shall in any event remain fully liable for reasonable damages as provided by law and for all costs and expenses incurred by Lessor on account of such default including, wherever situatedbut not limited to, the monies adjudicated all court costs and reasonable attorneys' fees. Lessee further agrees that, in any event, it will be liable for any deficiency after any sale, lease or decreed disposition by Lessor. The rights afforded Lessor hereunder shall not be deemed to be payableexclusive, but shall be in addition to any other rights or remedies provided by law. Lessor agrees to seek to mitigate its damages in a commercially reasonable manner.
Appears in 2 contracts
Samples: Lease Agreement (Greenfield Online Inc), Lease Agreement (Greenfield Online Inc)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredis continuing, then the Holder maySecurity created by or pursuant to this Mortgage immediately shall become enforceable and the Mortgagee, in addition to the remedies afforded to it under the Finance Documents and in accordance with the Finance Documents, shall have the right:
(i) to exercise all of the rights and remedies in foreclosure and otherwise given to Mortgagee by the provisions of the laws of the Republic of Liberia or of any other jurisdiction where the Vessel may be found;
(ii) to bring suit at law, in equity or in admiralty, as it may elect, to recover judgment for the Indebtedness, and collect the same out of any and all property of the Shipowner, whether covered by this Mortgage or otherwise;
(iii) to require that all documents and records relating to the Insurance Policies or other insurances in respect of the Mortgaged Property (including details of, and correspondence concerning, any outstanding claim) immediately be delivered to the Mortgagee or its nominee;
(iv) to collect, recover, compromise and/or give a good discharge for any moneys or claims in respect of the Vessel and to permit any brokers through which collection or recovery is effected to charge the usual brokerage for doing so;
(v) to settle, refer to arbitration, compromise and/or arrange any claims, accounts, disputes, questions and demands with or by any Person that relate to the Vessel;
(vi) without any notice, to take and enter into possession of the Vessel, at any time, wherever the same may be, without further notice legal process and without being responsible for loss or damage, and the Shipowner or other Person in possession upon demand of the Mortgagee immediately shall surrender to the CompanyMortgagee possession of the Vessel and the Mortgagee, declare without being responsible for loss or damage, may hold, lay up, lease, charter, operate or otherwise use the principal amount of this Note at the Vessel for such time outstandingand upon such terms as it may deem appropriate, in its sole discretion, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other amounts payable sums due or to become due in respect of the Vessel or in respect of any insurance maintained in respect of the Vessel from any Person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to Clause 6(a)(vii), all costs, expenses, charges, damages, or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right given to it in this Mortgage to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock the Vessel at any other place at the cost and expense of the Shipowner;
(vii) without any notice, to take and enter into possession of the Mortgaged Property, at any time, wherever the same may be, without legal process, and if it seems desirable to the Mortgagee and without being responsible for loss or damage, sell the Mortgaged Property at any place and at such time as the Mortgagee may specify and in such manner and upon such terms and conditions as the Mortgagee may deem advisable, free from any claim by the Shipowner in admiralty, in equity, at law or by any other Legal Requirement, at public or private sale, by sealed bids or otherwise. Any sale may be held at such place and at such time as the Mortgagee may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and, without any notice or publication, the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned, and any sale may be conducted without bringing the Mortgaged Property to the place designated for such sale and in such manner as the Mortgagee in its sole discretion may deem to be appropriate, and the Mortgagee may become the purchaser at any sale.
(b) Any sale of the Mortgaged Property pursuant to this Mortgage, whether under the power of sale granted under this Note Mortgage or any judicial proceedings, shall operate to divest all right, title and interest of any nature whatsoever of the Shipowner in the Mortgaged Property and shall bar the Shipowner, its successors and assigns, and all Persons claiming by, through or under them. No purchaser shall be forthwith bound to inquire whether notice has been given, or whether any default has occurred, or as to the propriety of the sale, or as to the application of the proceeds thereof. In case of any such sale, the Mortgagee, if it is the purchaser, shall be entitled, for the purpose of making settlement or payment for the Mortgaged Property, to use and apply the Indebtedness in order that there may be credited against the amount remaining due and payableunpaid the sums payable out of the net proceeds of such sale to the Mortgagee after allowing for the costs and expense of sale and other related charges; and thereupon such purchaser shall be credited, whereupon on account of such principal purchase price, with the net proceeds that shall have been so credited upon the Indebtedness. At any such sale, the Mortgagee may bid for and all such amounts shall become purchase the Mortgaged Property and be forthwith due upon compliance with the terms of sale may hold, retain and payabledispose of the Mortgaged Property without further accountability therefor.
(c) The Company covenants that in case the Principal Whenever any right to enter and take possession of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Mortgaged Property accrues to the Holder of this NoteMortgagee, it may require the Shipowner to deliver, and the Shipowner on demand and at its own cost and expense shall deliver to the Mortgagee, the whole amount that then Mortgaged Property as demanded.
(d) If any legal proceeding shall have become due and payable on be taken to enforce any right under this Note for Principal. In case the Company shall fail forthwith to pay such amountMortgage, the Holder Mortgagee shall be entitled as a matter of right to the appointment of a receiver of the Mortgaged Property and of the freights, hire, earnings, issues, revenues, income and profits due, or to become due, and arising from the operation of the Vessel.
(e) The Shipowner authorizes and empowers the Mortgagee or its appointee to appear in the name of the Shipowner, its successors and assigns, in any court of any country or nation of the world where a suit is pending against the Mortgaged Property because of, or on account of, any alleged Security Interest against the Mortgaged Property from which the Mortgaged Property has not been released and to take such proceedings as the Mortgagee may commence an action deem necessary in the defence of such suit and the purchase or proceeding at law discharge of such Security Interest, and all expenditures made or in equity incurred by it for the collection purpose of such defense or purchase or discharge shall form part of the sums so due Senior Debt Obligations.
(f) The Mortgagee shall apply any proceeds from time to time held by it and unpaidthe net proceeds of any collection, recovery, receipt, appropriation, realization or sale with respect to the Vessel or any other Mortgaged Property, in accordance with clause 12.1 of the Intercreditor Agreement.
(g) Until the occurrence of an Event of Default that is continuing, the Shipowner, subject to the terms of the Finance Documents, shall:
(i) be permitted to retain actual possession and may prosecute use of the Vessel; and
(ii) have the right, from time to time, in accordance with Finance Documents, to dispose of, free from the Security created by or pursuant to this Mortgage, any such action boilers, engines, machinery, masts, spars, sails, rigging, boats, anchors, chains, tackle, apparel, furniture, fittings or proceeding to judgment equipment or final decree against Company any other appurtenances of the Vessel that are no longer useful, necessary, profitable or advantageous in the operation of the Vessel, first or simultaneously replacing the same by new boilers, engines, machinery, masts, spars sails, rigging, boats, anchors, chains, tackle, apparel, furniture, fittings or equipment, or other obligor upon appurtenances of substantially equal value to the Shipowner, which immediately shall become subject to the Security Interests created pursuant to this Note, wherever situated, the monies adjudicated or decreed to be payableMortgage as a preferred mortgage thereon.
Appears in 2 contracts
Samples: Project Facilities Agreement and Intercreditor Agreement (Pacific Drilling S.A.), Amendment and Restatement Agreement (Pacific Drilling S.A.)
Events of Default and Remedies. (a) Any one or more The occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):
" under this Agreement, and the Company shall give the Lender immediate notice thereof: (ia) The the failure of the Company to make any payment of principal or interest under the Note when due, (b) the Company becomes subject to any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency insolvency, receivership or reorganization or debtor relief of debtorsproceedings and, or seeking in the entry case of any order for relief or such proceedings initiated against the appointment of a receiverCompany, trusteethe same have not been discharged within sixty (60) days after institution, custodian or other similar official for such (c) the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; , or admits in writing an inability to pay its debts generally as they become due, (Dd) shall take the Company fails to comply with or perform any action to authorize covenant, agreement or effect condition of this Agreement or any other Loan Document, (e) any statement, representation or warranty in any of the actions set forth above Loan Documents is false, misleading or erroneous in this subsection 4(a)(i);
any material respect on the date thereof, and such statement, representation or warranty is not made true and correct (iias of the time such corrective action is taken) Any proceeding shall within the applicable grace period (if any) provided for in such Loan Document, (f) the occurrence of any event or condition deemed to be instituted against a default under or as defined in any other Loan Document, or (g) the Company seeking breaches of defaults under any material contract or obligation which has or may reasonably be expected to adjudicate it have a bankrupt material adverse effect on the business or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief operations of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare including, with limitation, a default by the principal amount Company under the Senior Debt; provided, however, the Lender acknowledges that as of the date hereof, the Company is in default under the Senior Debt for failure to timely file the reports listed on Exhibit D. For purposes of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this NoteAgreement, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.term "
Appears in 2 contracts
Samples: Loan Agreement (Fernwood Partners Ii LLC), Loan Agreement (Cyberguard Corp)
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred and be continuing shall constitute (each, an event of default (“Event of Default”):
) occurs: (a) the outstanding principal amount of the Note is not paid by the Maturity Date, and such default continues unremedied for a period of 10 calendar days; (b) any failure by the Company to perform any of its obligations under this Note or the Security Agreement, and such default continues unremedied for a period of 30 calendar days; or (c) the occurrence of any of the following: (i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition the making of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any the filing of any petition or the commencement of any proceeding shall be instituted by or against the Company seeking to adjudicate it a bankrupt or insolventany guarantor for any relief under any bankruptcy or insolvency laws, or seeking any laws relating to the relief of debtors, readjustment of indebtedness, reorganizations, compositions, or extensions; (iii) any action initiating the dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief winding-up or termination of debtors, the Company; or seeking the entry of an order for relief or (iv) the appointment of a receiver, trusteeliquidator, custodian custodian, trustee or other similar official or fiduciary for the Company or any guarantor or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty then: (60I) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredin Sections (a) and (b) above, then and at any time thereafter during the Holder maycontinuance of such event, without further the Lender may by notice to the Company, Company declare the principal amount of this Note at the time outstanding, and all other amounts payable then outstanding under this Note to be forthwith due and payablepayable in whole or in part, whereupon such the principal amount so declared to be due and all such amounts payable shall become and be forthwith due and payable.
, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Company, anything contained herein to the contrary notwithstanding; and (II) in any event with respect to an Event of Default described in Section (c) The Company covenants that in case above, the Principal principal amount of the Note becomes then outstanding and all other liabilities of the Company accrued hereunder, shall automatically become due and payable payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by declaration the Company, anything contained herein to the contrary notwithstanding. If any action or otherwiseproceeding is brought by the Lender to collect or enforce payment of this Note, then the Company will shall pay in cash to the Holder of this Note, the whole amount that then shall have become due Lender any reasonable attorneys’ fees and payable on this Note for Principal. In case the Company shall fail forthwith to pay other reasonable costs and expenses incurred in connection with such amount, the Holder may commence an action collection or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableenforcement.
Appears in 2 contracts
Samples: Convertible Note (Peak Bio, Inc.), Convertible Note (Peak Bio, Inc.)
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Borrowers fail to pay any amount of principal and interest when due under any Note and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by any Borrower in this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Borrowers (A) fail to obtain and maintain the insurance coverage required herein; or (B) fail to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) any Borrower which is not an individual shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) any Borrower that is an individual dies or becomes permanently and totally disabled; (vi) any Borrower (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between any Borrower and Lender or any affiliate of Lender; (viii) nonpayment by any Borrower of any Rate Management Obligation when due or the breach by any Borrower of any term, provision, or condition contained in any Rate Management Agreement; (ix) a default shall have occurred and be continuing under any contract, agreement or document between any Borrower and any of its other creditors, (x) if Borrowers’ obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (xi) Lender shall have determined, in its sole discretion, that a material adverse change in Borrowers’ existing or prospective financial condition, management or results of operations since the date hereof which may affect the ability of Borrowers to perform their obligations under the Loan Documents has occurred; or (xii) both the President and the CEO of Borrower depart the company, and/or one single person or entity comes to own 50.1% or more of the capital stock or other ownership interest of such Borrower.
(b) Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrowers under this Agreement, any Notes, or any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for reinvestment costs and not as a penalty), and (ii) proceed to exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred and be continuing shall constitute an event exclusive), all of default (“Event of Default”):which are hereby authorized by Borrowers:
(i) The Company Borrowers shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any all of the actions set forth above in this subsection 4(a)(i)Equipment at a location designated by Lender; and/or to return promptly, at Borrowers’ expense, any or all of the Equipment to Lender at such location;
(ii) Any proceeding shall Lender may itself or by its agents enter upon the premises of any Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrowers any or all of the Equipment, wherever it may be instituted against the Company seeking to adjudicate it a bankrupt or insolventlocated, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an without any court order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orpossession;
(iii) The Company shall fail to pay the Sell, lease or otherwise dispose of any part or all of the Principal when due hereunderEquipment, whether or not in Lender’s possession, at public or private sale with or without notice to Borrowers, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Borrowers under the Notes and the other Loan Documents, with Borrowers remaining liable for any deficiency, or retain any and all of the Equipment;
(biv) If Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrowers or to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lender or any affiliate of this Note at the time outstandingLender, and all other amounts payable with respect to which any Borrower has an interest, against any obligations of such Borrower arising under this Note Agreement, any Notes or any other Loan Document, whether or not such Borrower has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lender in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that Borrowers shall indemnify, defend and hold Lender harmless for any loss, personal injury (including death), or damage to property, suffered by Lender, its employees or any of its agents in case connection with its entry onto the Principal premises of Borrowers or any third party hereunder. Each of the Note becomes due rights and payable by declaration remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or otherwiseany other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, then the Company will pay in cash power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the Holder future exercise of this Noteany such right, the whole amount that then power or remedy. Waiver by Lender of any Event of Default shall have become due and payable on this Note for Principal. In case the Company not be a waiver by Lender of any other or subsequent Events of Default.
(d) Borrowers shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or notify Lender in equity for the collection writing of the sums so due and unpaidoccurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may prosecute in any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableevent within ten (10) days thereafter.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Innovative Food Holdings Inc)
Events of Default and Remedies. So long as any of the following events have occurred or conditions exist (any such event or condition being herein referred to as an "Event of Default"):
(a) Any one representation or more warranty made by you or any other obligor herein or any certificate, financial statement or other document delivered in connection herewith shall prove to have been untrue or incorrect in any material respect as of the date as of which made or deemed to have been made or repeated; or
(b) You shall fail fully to perform or comply with any terms, covenants or provisions of ss.5 subject, in the case of the covenants referred to in Section 5(a) hereof, to the applicable notice provisions and grace periods, if any, set forth in Section 15.1 of the Credit Agreement; or
(c) You or another obligor shall fail fully to perform or comply with any other of the terms, covenants or provisions set forth herein and such failure shall continue for a period of five (5) calendar days following events which shall have occurred and be continuing shall constitute an event our notice to you or such other obligor of default such failure; or
(“d) Any Default or Event of Default under the Credit Agreement (other than the Specified Events of Default”):
(i) The Company shall occur. then, and in such event, and so long as such Event of Default is continuing, the Agent may, and upon the request of the Majority Banks shall, by written notice to you declare this Agreement to be terminated. Upon such termination, we shall be relieved of our forbearance obligations set forth herein and, accordingly, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in the Credit Agreement, the Notes and the other Loan Documents or any subsidiary (A) shall institute any proceeding or voluntary case seeking instrument pursuant to adjudicate it bankrupt or insolventwhich the Obligations to such Bank are evidenced, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition including as permitted by applicable law the obtaining of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the ex parte appointment of a receiver, trusteeand, custodian or other similar official for if such the Company or any subsidiary or for any substantial part of its property, or amount shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts have become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then proceed to enforce the Company will pay payment thereof or any other legal or equitable right of such Bank. The remedies specified herein are cumulative and not exclusive of any other remedy. Our failure or delay to exercise any remedy after any particular Event of Default shall not operate as a waiver of any remedy in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablesubsequent instance.
Appears in 1 contract
Samples: Forbearance and Amendment Agreement (Russell-Stanley Holdings Inc)
Events of Default and Remedies. 13.1 The occurrence of any of the following shall constitute an event of default:
(a) Any The Rent or any other sum of money payable under this Lease is not paid when due;
(b) Lessee's interest in the Lease or the Property shall be subjected to any attachment, levy, or sale pursuant to any order or decree entered against Lessee in any legal proceeding and such order or decree shall not be vacated within ninety (90) days of entry thereof; or
(c) Lessee breaches or fails to comply with any term, provision, condition, or covenant of this Lease, other than the payment of Rent and any other sum due and payable hereunder.
13.2 Upon the occurrence of an event of default and, in the case of an event of default under subsection (a) above, if such event of default is not cured within five (5) days of receipt of written demand, and, in the case of an event of default under subsections (b) or (c) above, if such event of default is not cured within thirty (30) days after written notice of such event of default is given by Lessor to Lessee, or such longer period of time as is reasonably necessary under the circumstances. Lessor shall have the option to do and perform any one or more of the following events in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(a) Lessor, with or without terminating this Lease, may reenter the Property and perform, correct or repair any condition which shall have occurred constitute a failure on Lessees part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and be continuing Lessee shall constitute an event fully reimburse and compensate Lessor on demand for all costs and expenses reasonably incurred by Lessor in such performance, correction or repairing, including accrued interest as provided in the next sentence. All sums so expended to cure Lessee's default shall accrue interest from the date of default (“Event demand until date of Default”):
payment at a rate of interest per annum equal to the lesser of (i) The Company or any subsidiary sixteen percent (A16%) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsper annum; or (Dii) the highest rate permitted by law.
(b) Lessor, with or without terminating this Lease, may immediately, or at any time thereafter, demand in writing that Lessee vacate the Property and thereupon Lessee shall vacate the Property and remove therefrom all property thereon belonging to or placed on the Property by, at the direction of, or with consent of Lessor within ten (10) days of receipt by Lessee of such notice from Lessor, whereupon Lessor shall have the right to reenter and take any action to authorize or effect any possession of the actions set forth above in Property. Any such demand, reentry and taking possession of the Property by Lessor shall not of itself constitute an acceptance by Lessor of a surrender of this subsection 4(a)(i);Lease or of the Property by Lessee and shall not of itself constitute a termination of this Lease by Lessor.
(iic) Any proceeding shall be instituted against Lessor, with or without terminating this Lease, may immediately or at any time thereafter relet the Company seeking to adjudicate it a bankrupt Property or insolventany part thereof for such time or times, at such rental or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or rentals and upon such other similar official for the Company or for any substantial part of terms and conditions as Lessor in its propertycommercially reasonable discretion may deem advisable, and either Lessor may make any alterations or repairs to the Property which it may deem necessary or proper to facilitate such proceeding reletting; and Lessee shall pay all costs of such reletting including but not limited to the cost of any such alterations and repairs to the Property, attorneys' fees, and brokerage commissions; and if this Lease shall not have been dismissed terminated, Lessee shall continue to pay all rent and all other charges due under this Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Property, and thereafter Lessee shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Lessee shall not have be entitled to receive any excess of any such rents collected over the rents reserved herein.
(d) Lessor may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have-been stayed for a period terminated upon receipt by Lessee of sixty (60) days or any written notice of the actions sought in such proceeding (termination; upon such termination Lessor shall recover from Lessee all damages Lessor may suffer by reason of such termination including, without limitation, all arrearages in rentals, costs, charges, additional rentals' and reimbursements, the entry cost (including court costs and attorneys' fees) of recovering possession of the Property, the cost of any order alteration of or repair to the Property which is necessary or proper to prepare the same for relief against it or re-letting and, in addition thereto, Lessor shall have and recover from Lessee an amount equal to the appointment of a receiverexcess if any, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal total amount of this Note at the time outstanding, all rents and all other amounts payable under this Note charges to be forthwith due and payablepaid by Lessee for the remainder of the term of this Lease over the then reasonable rental value of the Property for the remainder of the term of this Lease, whereupon such principal and all such amounts shall become and be forthwith due and payableexcess discounted to present value using a discount rate equal to six percent (6%).
(ce) The Company covenants that in case Lessor shall have a good faith duty to mitigate his losses hereunder.
13.3 If Lessor re-enters the Principal Property or terminates this Lease pursuant to any of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder provisions of this NoteLease, Lessee hereby waives all claims for damages which may be caused by such re-entry or termination by Lessor. Lessee shall and does hereby agree to indemnify and hold Lessor harmless from any loss, cost (including court costs and attorneys' fees), or damages suffered by Lessor by reason of such re-entry or termination. No such re entry or termination shall be considered or construed to be a forcible entry.
13.4 No course of dealing between Lessor and Lessee or any failure or delay on the whole amount part of Lessor in exercising any rights of Lessor under this Section 13 or under any other provisions of this Lease shall operate as a waiver of any rights of Lessor hereunder or under any other provisions of this Lease, nor shall any waiver of any event of default on one occasion operate as a waiver of any subsequent event of default or of any other event of default. No express waiver shall affect any condition, covenant, rule, or regulation other than the one specified in such waiver and that then one only for the time and in the manner specifically stated.
13.5 The exercise by Lessor of any one or more of the rights and remedies provided in this Lease shall have become due not prevent the subsequent exercise by Lessor of any one or more of the other rights and payable on remedies herein provided. All remedies provided for in this Note Lease are cumulative and may, at the election of Lessor, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at allowed by law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableequity.
Appears in 1 contract
Samples: Lease Agreement (Hughes Supply Inc)
Events of Default and Remedies. (a) Section 9.1 Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default hereunder:
(a) default for a period of 10 days in the payment when due of all or any part of the principal of or interest on the Note (whether at the stated maturity thereof or at any other time provided for in this Agreement) or of any fee or other amount payable by the Company hereunder; or
(b) default in the observance or performance of any covenant set forth in Sections 8.6, 8.7, 8.8, 8.9, 8.12, 8.13, 8.14, 8.15 or 8.16 hereof; or
(c) default in the observance or performance of any other provision hereof which is not remedied within 30 days after written notice thereof to the Company by the Bank; or
(d) any representation or warranty made by the Company herein, or in any statement or certificate furnished by it pursuant hereto, or in connection with any Loan made hereunder, proves untrue in any material respect as of the date of the issuance or making thereof; or
(e) any Guarantor shall purport to disavow, revoke, repudiate or terminate its obligations under any Guaranty Agreement; or
(f) default shall occur under any evidence of Indebtedness for Borrowed Money issued assumed or guaranteed by the Company or any Subsidiary or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness for Borrowed Money (whether or not such maturity is in fact accelerated) or any such Indebtedness for Borrowed Money shall not be paid when due (whether by lapse of time, acceleration or otherwise); or
(g) any judgment or judgments, writ or writs, or warrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of $500,000 shall be entered or filed against the Company or any of its Subsidiaries or against any of their Property and which remains unvacated, unbonded, unstayed or unsatisfied for a period of forty-five (45) days; or
(h) the Company or any member of its Controlled Group shall fail to pay when due an amount or amounts aggregating in excess $200,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $200,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by the Company or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Company or any member of its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or
(i) The the Company or any subsidiary Subsidiary shall (Ai) shall have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding or voluntary case seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, liquidation, reorganization, arrangement, adjustment, protection, relief adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or seeking the entry of (vi) fail to contest in good faith any order for relief appointment or the appointment of proceeding described in Section 9.1(j) hereof; or
(j) a custodian, receiver, trustee, custodian examiner, liquidator or other similar official shall be appointed for such the Company or any subsidiary of its Subsidiaries or for any substantial part of its propertyany of their Property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer described in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (BSection 9.1(i)(v) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertySubsidiaries, and either such appointment continues undischarged or such proceeding shall not have been dismissed continues undismissed or shall not have been stayed unstayed for a period of sixty (60) days or days.
Section 9.2 When any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above in clauses (a) through (h), both inclusive, of Section
9.1 has occurredoccurred and is continuing, then the Holder Bank or any holder of the Note may, without further by notice to the Company, take either or both of the following actions:
(a) terminate the obligation of the Bank to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice; and
(b) declare the principal amount of this Note at and the time outstanding, and all other amounts payable under this accrued interest on the Note to be forthwith due and payablepayable and thereupon the Note, whereupon such including both principal and interest and all such fees, charges and other amounts payable hereunder, shall be and become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes immediately due and payable by declaration without further demand, presentment, protest or otherwisenotice of any kind.
Section 9.3 When any Event of Default described in clauses (i) or (j) of Section 9.1 has occurred and is continuing, then the Company will pay in cash to the Holder of this Note, the whole amount that then including both principal and interest, and all fees, charges and other amounts payable hereunder, shall have immediately become due and payable on this Note for Principal. In case without presentment, demand, protest or notice of any kind, and the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection obligation of the sums so due and unpaid, and may prosecute Bank to extend : further credit pursuant to any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, of the monies adjudicated or decreed to be payableterms hereof shall immediately terminate.
Appears in 1 contract
Events of Default and Remedies. Section 7.1 Events of Default. Each of the following shall be an Event of Default:
(a) Any one or more The occurrence of the following events which shall have occurred and be continuing shall constitute an event of default as defined in Section 7.01 (“Event of Default”):
(ia) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (Db) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i)Indenture;
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiib) The Company shall fail to pay observe and perform any other agreement, term or condition contained in this Agreement, other than such failure as will have resulted in an event of default described in (a) above and the any part continuation of that failure for a period of 90 days after notice thereof shall have been given to the Principal when due hereunder;
(b) If Company by the Issuer or the Trustee, or for such longer period as the Issuer and the Trustee may agree to in writing: provided, that failure shall not constitute an Event of Default described above has occurred, then so long as the Holder may, without further notice Company institutes curative action within the applicable period and diligently pursues that action to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.completion;
(c) The Company covenants that occurrence of a “completed default” as defined in case the Principal Section 1 of Article Twelve of the Note becomes due Company Mortgage; and
(d) Written notice from the Bond Insurer to the Trustee that an event of default has occurred and payable is continuing under the Bond Insurance Agreement. Notwithstanding the foregoing, if, by declaration or otherwisereason of Force Majeure, then the Company will pay in cash is unable to the Holder perform or observe any agreement, term or condition hereof which would give rise to an Event of this NoteDefault under subsection (b) hereof, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay not be deemed in default during the continuance of such amountinability. However, the Holder may commence an action or proceeding at law or in equity for Company shall promptly give notice to the collection Trustee and the Issuer of the sums so due existence of an event of Force Majeure and unpaid, and may prosecute any such action or proceeding shall use its best efforts to judgment or final decree against Company remove the effects thereof; provided that the settlement of strikes or other obligor upon this Noteindustrial disturbances shall be entirely within its discretion. The term Force Majeure shall mean the following:
(i) acts of God; strikes, wherever situatedlockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or of the State or any of their departments, agencies, political subdivisions or officials, or any civil or military authority; insurrections; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornados; storms; droughts; floods; arrests; restraint of government and people; explosions; breakage, nuclear accidents or other malfunction or accident to facilities, machinery, transmission pipes or canals; partial or entire failure of a utility serving the monies adjudicated Project; shortages of labor, materials, supplies or decreed transportation; or
(ii) any cause, circumstance or event not reasonably within the control of the Company. The exercise of remedies hereunder shall be subject to be payableany applicable limitations of federal bankruptcy law affecting or precluding that declaration or exercise during the pendency of or immediately following any bankruptcy, liquidation or reorganization proceedings.
Appears in 1 contract
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Hospital fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Hospital.
(b) Hospital attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which Equipment or any items thereof, except as expressly permitted herein;
(c) Hospital shall have occurred fail to observe or perform any of the other obligations required to be observed or performed by Hospital hereunder and be continuing such failure shall continue for twenty (20) days after written notice thereof to Hospital by GKF, unless Hospital has cured or is attempting to cure such failure during such period. So long as Hospital is diligently attempting to cure its failure to observe or perform any of its obligations, in good faith, such failure shall not constitute an event of default (“Event of Default”):Default hereunder, unless such failure results in material damage or loss to GKF.
(id) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventHospital ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of it or its shareholders or directors shalI take any action looking to its dissolution or liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Hospital seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Hospital's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay not be vacated. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyHospital, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Hospital and Hospital hereby agrees to return the Equipment to GKF at Hospital's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Hospital to GKF through the end of the Equipment Term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments and incorporating an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Hospital shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default. In the event that Hospital shall have paid to GKF the liquidated damages referred to in (ii) above, GKF hereby agrees to pay to Hospital promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Equipment Term (after deduction of all expenses incurred by GKF (including costs of unloading, shipping, installing, and reloading the equipment); said amount never to exceed the amount of the liquidated damages paid by Hospital). Hospital agrees that GKF shall have no obligation to sell the Equipment. Hospital shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Hospital hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 1 contract
Samples: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default” hereunder:
(a) Loan Recipient fails to pay within five (5) business days of the day when due all or any part of the principal of or interest on any Loan (whether at the stated maturity thereof or at any other time provided for in this Agreement), any accrued interest or any fee or other obligation payable hereunder or under any other Loan Document;
(b) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, entered or filed against Loan Recipient or against any of its Property, in an aggregate amount in excess of [****] (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of 45 days;
(c) Loan Recipient, or any member of its Controlled Group, fails to pay when due an amount or amounts aggregating in excess of [****] which it shall have become liable to pay to the PBCG or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of [****] (collectively, a “Material Plan”):) is filed under Title IV of ERISA by Loan Recipient, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing, or the PBGC institutes proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding is instituted by a fiduciary of any Material Plan against Loan Recipient, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 45 days thereafter; or a condition exists by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(d) dissolution or termination of the existence of Loan Recipient, unless Loan Recipient has previously transferred the Loan to a new Loan Recipient pursuant to Article V, Section D of the Loan Administration Policy;
(e) Loan Recipient has had (i) The Company entered involuntarily against it a final order for relief under the United States Bankruptcy Code, as amended, (ii) does not pay, or admits in writing its inability to pay, its debts generally as they become due, (iii) makes an assignment for the benefit of creditors, (iv) applies for, seeks, consents to or acquiesces in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any subsidiary substantial part of its Property, (Av) shall institute institutes any proceeding or voluntary case seeking to have entered against it an order for relief [****] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. under the United States Bankruptcy Code, as amended, to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, liquidation, reorganization, arrangement, adjustment, protection, relief adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) takes any corporate action in furtherance of any matter described in parts (i) through (v) above, or seeking the entry of (vii) fails to contest in good faith any order for relief appointment or the appointment of proceeding described in Section 8.2(f) hereof; or
(f) a custodian, receiver, trustee, custodian examiner, liquidator or other similar official is appointed for such the Company Loan Recipient, or any subsidiary or for any substantial part of any of its propertyProperty, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer described in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (BSection 8.2(e)(v) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief any of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertyLoan Recipient, and either such appointment continues undischarged or such proceeding shall not have been dismissed continues undismissed or shall not have been stayed unstayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable90 days.
(cg) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.[****]
(h) [****]
Appears in 1 contract
Samples: Loan Agreement (Stemcells Inc)
Events of Default and Remedies. An Event of Default shall occur hereunder if Lessee:
(a) Any shall fail to make any payment of rent or other amount owing hereunder when due and such failure shall continue for a period of 10 days;
(b) shall fail to perform or observe any other covenant, agreement or condition hereunder within 30 days of written notice thereof being given by National City to Lessee, or if more than 30 days are reasonably required, Lessee fails to commence to diligently perform such obligations within such 30 days;
(c) shall make any representation or warranty to National City herein or in any document or certificate furnished National City in connection herewith which shall prove to be materially incorrect at the time made;
(d) shall become insolvent or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver;
(e) after 60 days if a trustee or receiver shall be appointed for Lessee or for a substantial part of its property or for the Equipment, or reorganization, arrangement, insolvency, dissolution or liquidation proceedings shall be instituted by or against Lessee and such appointment or proceedings are not terminated within such time;
(f) shall suffer an adverse material change in its financial condition from the date hereof, and as a result thereof National City deems itself or any of its Equipment to be insecure; or
(g) shall be in default under any other agreement at any time executed with National City or any affiliate or subsidiary of National City Corporation then National City may, after National City notifies Lessee of such default and Lessee has failed to cure such default in the applicable period set forth above, declare this Agreement to be in default and may do one or more of the following events which shall have occurred with respect to any or all of the Equipment as National City in its sole discretion may elect, to the extent permitted by, and be continuing shall constitute an event subject to compliance with any mandatory requirements of default (“Event of Default”):applicable law then in effect:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialterminate this Lease effective immediately; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(ii) Any proceeding demand that Lessee, and Lessee shall at its expense upon such demand, return the Equipment promptly to National City in the manner and condition required by and otherwise in accordance with the provisions of Section 2 hereof, as if the Equipment were being returned at the expiration of its term of lease hereunder, or National City, at its option, may enter upon the premises where the Equipment is located and take possession of and remove the same by summary proceedings or otherwise, all without liability to Lessee for damage to property or otherwise, provided that there occurs no breach of the peace and further provided that if the Equipment is located on an Environmental Protection Agency permit site or is being used for the cleaning, treatment, storage or transportation of hazardous materials, National City's actions shall be instituted against the Company seeking governed by all applicable Environmental Laws, all without liability to adjudicate it a bankrupt Lessee for damage to property or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurotherwise; or
(iii) The Company take possession of any or all Equipment and remove the same without liability for injuries suffered through or loss caused by such repossession provided that there occurs no breach of the peace and further provided that if the Equipment is located on an Environmental Protection Agency permit site or is being used for the cleaning, treatment, storage or transportation of hazardous materials, National City's actions shall fail be governed by all applicable Environmental Laws, all without liability to Lessee for damage to property or otherwise. In the event National City proceeds pursuant to this subsection (iii), National City may sell any or all Equipment at public or private sale as is commercially reasonable given the existing conditions on an "as is, where is" basis without recourse or warranties of any kind, or otherwise hold, use, operate, or keep idle such Equipment, as National City in its sole discretion determines is commercially reasonable free and clear of all rights of Lessee; or
(iv) whether or not National City has exercised any other right hereunder, by written notice to Lessee, cause Lessee to pay National City (as liquidated damages for loss of a bargain and not as a penalty) on the any part date specified in such notice an amount equal to the Rent due and payable on the first day of the Principal when due hereunder;month following the date of the notice of Lease termination plus a sum equal to the appropriate Stipulated Loss Value determined as of the first of the month following the date of the notice of Lease termination as set out in the applicable Schedule; or
(bv) If National City may exercise any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof. In addition, Lessee shall pay National City all costs and expenses incurred by National City as a result of Lessee's default hereunder or the termination hereof, including, without limitation, reasonable attorney's fees and costs arising out of repossession and disposal of the Equipment. Provided Lessee has previously paid to National City the sum of the Stipulated Loss Value, Rent due and owing and other costs and expenses incurred pursuant hereto, Lessee shall be entitled to the net proceeds of any such sale, disposition or re-lease of the Equipment to the extent they do not exceed the Stipulated Loss Value. Any excess shall be retained by National City. To the extent the Equipment is re- leased by National City, Lessee shall be credited the present value of the lease rental stream at the discount rate of National City Bank Prime as of the date the release is agreed to between the parties. Furthermore, to the extent the parties to this Lease need to determine the present value of any moneys due under the Lease, the parties agree that the discount rate shall be National City Bank Prime. In addition, Lessee shall continue to be liable for all indemnities under this Lease and for all reasonable attorney fees and other costs and expenses resulting form the termination hereof and/or the exercise of National City's remedies, including placing any Equipment in the condition required by Section 7 hereof. Except as expressly provided above, no remedy referred to in this section is exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available to National City at law or equity; and the exercise or beginning of exercise by National City of any one or more of such remedies shall not preclude the simultaneous or later exercise by National City of any other remedies. No express or implied waiver by National City of an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount shall constitute a waiver of this Note at the time outstanding, and all any other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableor subsequent Event of Default.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred occur and be continuing (each such event shall constitute be an event of default (“Event of Default”):
(i) The Company any representation or warranty made by the District in any Financing Document or in any certificate, agreement, report instrument or statement contemplated by or made or pursuant to or in connection with this Agreement shall prove to have been false or misleading in any material respect when made;
(ii) failure of the District to make any payment of the principal of or interest on the Loan, the Series 2018 Note or any subsidiary other Payment Obligation as and when due;
(Aiii) failure of the District to make any payment of any amount when due under this Agreement (other than a Payment Obligation) and such default shall institute continue for thirty (30) days after written notice of such default shall have been given to the District by the Lender;
(iv) Failure of the District to observe or perform the covenants set forth in Sections 9(a)(iii), 10(b), 10(c), 10(d) or 10(f) of this Agreement and such default shall continue for thirty (30) days after written notice of such default shall have been given to the District by the Lender;
(v) failure of the District to observe or perform any proceeding or voluntary case other covenant set forth in this Agreement and such failure shall have continued for 180 consecutive days; provided that if the District is diligently seeking to adjudicate cure such Event of Default it may, by written notice to the Lender (which shall include detailed information regarding the actions being taken to cure), request up to an additional sixty (60) days to cure such Event of Default, and the Lender shall not unreasonably reject such request;
(vi) the District makes an assignment for the benefit of creditors, enters into a composition agreement with creditors, files a petition in bankruptcy (to the extent permitted by law), is unable generally to pay its debts as they come due, is insolvent or bankrupt or insolvent, there is entered any order or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, decree granting relief or composition of it or its debts in any involuntary case commenced against the District under any law relating to applicable bankruptcy, insolvency or reorganization other similar law now or relief of debtorshereafter in effect, or seeking if the entry of District petitions or applies to any order tribunal or governmental entity for relief or the appointment of a any receiver, trustee, liquidator, assignee, custodian or sequestrator (or other similar official for such official) of the Company District or any subsidiary or for of any substantial part of its propertythe District’s assets, or the District commences any case or proceeding in a court of law for a reorganization, readjustment of debt, dissolution, liquidation or other similar procedure under the law or statutes of any jurisdiction, whether now or hereafter in effect, or if there is commenced against the District any such case or proceeding in a court of law which remains undismissed or shall consent not be discharged or vacated, or such jurisdiction shall not be relinquished or the District shall not have commenced proceedings to the commencement against it of dismiss such a proceeding or case, within sixty (60) days after commencement, or shall file an answer the District by any act indicates its consent to, approval of, or acquiescence in any such case or proceeding in a court of law, or to an order for relief in an involuntary case commenced against it consenting to or acquiescing in the commencement of District under any such case or proceedinglaw, or shall consent to or acquiesce in the appointment of such a any receiver, trustee, custodian liquidator, assignee, custodian, sequestrator (or other similar official) for the District or a substantial part of the District’s assets, or if the District takes any action for the purposes of effecting the foregoing; (B) shall be or if the District becomes a debtor in a bankruptcy case or otherwise adjusts its debts under judicial administration or otherwise restructures its debts generally or is insolvent, bankrupt or unable to pay meet its debts as such debts they become due, ;
(vii) any material provision of this Agreement or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions other Financing Documents shall cease to be valid and binding; or the District shall deny that it has any or further liability hereunder or under any of the other Financing Documents;
(viii) the District shall default in the payment of any principal of or premium, if any, or interest on any of its Parity Debt, or the District shall default in the performance of any agreement (including any related financing document) under which any such Parity Debt is created if the effect of such default is to cause such Parity Debt to become, or to permit any holder or beneficiary thereof, or a trustee on behalf thereof, with notice if required, to declare such Parity Debt to be due prior to its stated maturity or scheduled payment date, whether pursuant to acceleration, mandatory tender, mandatory redemption or otherwise, after any applicable cure and payment periods, or a moratorium shall have been imposed by or with respect to the District with respect to any of its Parity Debt, or the occurrence of any of the foregoing may (in the reasonable judgment of the Lender) have a material adverse effect on the ability of the District to perform its obligations hereunder or under any Financing Document to which it is a party;
(ix) an “Event of Default” occurs as defined in any of the other Financing Documents or under any Lender Agreement;
(x) any Parity Debt is declared to be in default by the holder thereof, and the holder of the Parity Debt has accelerated the maturity of the Parity Debt; or
(xi) the District contests its Payment Obligations.
(b) Upon the occurrence of any Event of Default set forth above in this subsection 4(a)(iSections 11(a)(ii) and (iii);
, the Lender may (iiA) Any proceeding shall be instituted against direct the Company seeking Paying Agent to adjudicate it a bankrupt or insolventapply amounts on deposit in the Skyland TIF Fund, the Debt Service Fund and the Redemption Fund to immediately pay any amounts of principal of and interest currently due on the Series 2018 Note and (B) direct the Paying Agent to notify the District to allocate the Available Increment, in accordance with the provisions of the Paying Agent Agreement, to cure any shortfall in the payments due pursuant to Section 11(b)(A) above. Upon the occurrence of any other Event of Default, the Lender may exercise, or seeking dissolutioncause to be exercised, liquidationany and all remedies it may have under any Financing Document or as otherwise available at law or in equity, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it specific performance, mandamus or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableinjunctive relief.
(c) The Company covenants that in case Notwithstanding the Principal exercise of any other remedies provided for herein, upon the Note becomes due occurrence and payable by declaration or otherwise, then during the Company will pay in cash to the Holder continuance of this Noteany Event of Default, the whole amount that then Series 2018 Note and any amounts due hereunder shall have become due and payable on this Note for Principal. In case bear interest at the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableDefault Rate.
Appears in 1 contract
Samples: Continuing Covenants Agreement
Events of Default and Remedies. (a) Any The occurrence of any one or more of the following events shall constitute an "Event of Default":
(a) Any principal of or interest on the Note shall not be paid when due.
(b) Any fee or other amount payable hereunder, under the Note or under any of the Collateral Documents shall not be paid when due and such default shall continue unremedied for more than 10 days after written notice thereof from the Bank.
(c) Any representation or warranty made by the Company herein or by the Company or any of the Guarantors in any certificate delivered pursuant hereto or in any of the Collateral Documents proves to have been untrue or misleading in any material respect as at the date as of which made.
(d) The Company shall default in the performance or observance of any covenant or condition contained in Sections 11 or 15(c) and (j) or shall default in the performance or observance of any covenant or condition contained in Section 10 and such default under Section 10 continue unremedied for a period of 14 days.
(e) Any of the Guarantors shall default in the performance or observance of any covenant or condition contained in Sections 4 or 5 of its Guaranty or shall attempt to repudiate, rescind, limit or annul any of its obligations under its Guaranty or any Guaranty shall be declared to be, or shall become, null and void.
(f) The Company or any of the Guarantors shall default in the performance or compliance with any other covenant or condition contained in this Agreement, in the Note or in any of the Collateral Documents and such default shall continue unremedied for more than 30 days after written notice thereof from the Bank.
(g) A default shall occur and be continuing under any of the Mortgages or any legislation, decree or regulation is enacted or promulgated the effect of which is to repudiate, rescind, limit or annul any of the Mortgages unless the Company, within a period of 30 days after such enactment or promulgation, shall have obtained a waiver or other relief satisfactory to the Bank from such legislation, decree or regulation or shall have restructured such Mortgage or Mortgages on terms and conditions satisfactory to the Bank in a manner which would not be illegal and which would avoid any such repudiation, rescission, limitation or annulment.
(h) An Event of Default shall have occurred and be continuing shall constitute an event of default (“Event of Default”):under the Indenture.
(i) The capital stock of the Company, or any portion thereof, shall be pledged to any person or shall otherwise be encumbered or, without the prior written consent of the Bank, there shall occur a Change in Control of the Company.
(j) Contemporaneously with the acquisition by a Guarantor of a Committed Vessel or an Additional Vessel, such Vessel shall not have been mortgaged to the Collateral Agent and its insurances assigned to the Collateral Agent as security for the obligations of such Guarantor to the Bank under its Guaranty.
(k) The Company or any subsidiary of its affiliates shall default in the payment when due (Asubject to any applicable grace period) shall institute of any proceeding indebtedness for borrowed monies, whether directly incurred or voluntary case seeking to adjudicate it bankrupt guaranteed, and whether at maturity or insolventat any other time if, in such latter event, such indebtedness is, or seeking dissolutionby reason of such default is subject to being, liquidationaccelerated, winding upand such default shall continue unremedied for a period of 7 days after written notice of such default from the Bank to the Company, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian unless such default is being contested in good faith and by appropriate proceedings or other similar official for such acts and there are set aside on its books adequate reserves with respect thereto.
(l) A material adverse change shall occur in the business, operations or financial condition of the Company or any subsidiary of the Guarantors which, in the reasonable opinion of the Bank, if not remedied, would prevent or materially impair the ability of the Company or any of the Guarantors to perform their respective material obligations under this Agreement, under the Note and under any of the Collateral Documents, and such shall not have been remedied within 15 days after written notice thereof from the Bank.
(m) A judgment or order for the payment of money shall be entered against the Company or any substantial part of the Guarantors by any court, and such judgment or order shall continue undischarged, unstayed or unappealed for a period of 10 days in which the aggregate of all such judgments or orders exceeds $5,000,000.
(n) The Company or any of the Guarantors shall make an assignment for the benefit of creditors, become insolvent or be unable, or admit in writing its propertyinability, to pay its debts as they mature, or shall file a petition in voluntary bankruptcy or a petition or answer or consent seeking reorganization or readjustment of indebtedness thereof under applicable bankruptcy laws now or hereafter existing, or shall consent to the commencement against it appointment by a court of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trusteeadministrator or trustee of the property thereof or of a substantial part of such property, custodian or similar official; (B) corporate action or other action shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment taken by any thereof for the benefit purpose of creditors; or (D) shall take any action to authorize or effect effecting any of the actions set forth above in this subsection 4(a)(i);foregoing.
(iio) Any proceeding By order or decree of a court of competent jurisdiction the Company or any of the Guarantors shall be instituted against the Company seeking to adjudicate it adjudicated a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, a petition for proceedings in bankruptcy or seeking for the entry of an order for relief reorganization thereof or the appointment readjustment of a receiverthe indebtedness thereof under applicable bankruptcy laws now or hereafter existing shall be filed against any thereof and any thereof shall admit the material allegations thereof, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding petition shall not have been dismissed within 60 days of its filing or an order, judgment or decree shall not have been stayed be made approving such petition or a receiver or trustee shall be appointed by a court for a period any thereof or the property of sixty (60) days any thereof, or any of the actions sought part thereof, and shall remain in such proceeding (including, without limitation, the entry of any order possession thereof for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) 60 days. If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become have occurred and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.continuing;
Appears in 1 contract
Events of Default and Remedies. An Event of Default shall occur hereunder if Lessee:
(a) Any shall fail to make any payment or rent or other amount owing hereunder when due;
(b) shall fail to perform or observe any other covenant, agreement or condition hereunder;
(c) shall make any representation or warranty to Lessor herein or in any document or certificate furnished Lessor in connection herewith which shall prove to be incorrect at any time.
(d) shall become insolvent or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver, or a trustee or receiver shall be appointed for Lessee or for a substantial part of its property or for the Equipment, or reorganization, arrangement, insolvency, dissolution or liquidation proceedings shall be instituted by or against Lessee;
(e) shall suffer an adverse material change in its financial condition from the date hereof, and as a result thereof Lessor deems itself or any of its Equipment to be insecure, or
(f) shall be in default under any other agreement at any time executed with Lessor or any affiliate or subsidiary of National City Corporation then Lessor may declare this Agreement to be in default and may do one or more of the following events which with respect to any or all of the Equipment as Lessor in its sole discretion may elect, to the extent permitted by, and subject to compliance with any mandatory requirements of applicable law then in effect
(a) demand that Lessee, and Lessee shall have occurred at its expense upon such demand, return the Equipment promptly to Lessor in the manner and be continuing shall constitute condition required by and otherwise in accordance with the provisions of Section 2 hereof, as if the Equipment were being returned at the expiration of its term of lease hereunder, or Lessor, at its option, may enter upon the premises where the Equipment is located and take possession of and remove the same by summary proceedings or otherwise, all without liability to Lessee for damage to property or otherwise.
(b) re-lease or sell any or all of the Equipment at public or private sale, with or without notice to Lessee or advertisement, or otherwise dispose of any or all of the Equipment as Lessor may determine, and recover from Lessee damages, for loss of a bargain and not as a penalty, in an event amount equal to the sum of (i) any accrued and unpaid rent as the later of (A) the date of default or (“B) the date that Lessor has obtained possession of the Equipment or such other date as Lessee has made an effect tender of possession of the Equipment back to Lessor ("Default Date"), plus rent (at the rate provided for in this Agreement) for the additional period (but in no event longer than ninety (90) days) that it takes Lessor to resell or re-let the Equipment, plus interest at the rate of 18% per annum, or the highest rate permitted by law, whichever is less; (ii) the present value of all future rentals reserved in the Lease and contracted to be paid over the unexpired terms of the Lease discounted at a rate equal to the discount rate of the Federal Reserve Bank of Cleveland as of the Default Date, (iii) all commercially reasonable costs and expenses incurred by Lessor in any repossession, recovery, storage, repair, sale, re-lease or other disposition of the Equipment including reasonable attorney's fees and costs incurred in connection with or otherwise resulting from the Lessee's default; (iv) estimated residual value of the Equipment (which is defined as the Fair Market Sales Value of the Equipment immediately prior to the Event of Default”):, but in no event an amount less than 20% of the Equipment's original cost to Lessor), and (v) any indemnity, if then determinable, plus interest at 18% per annum or the highest rate permitted by law, whichever is less; LESS the amount received by Lessor upon such public or private sale or re-lease of such items of Equipment, if any;
(ic) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking declare immediately due and payable all sums due and to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment due hereunder for the benefit of creditors; or (D) shall take any action to authorize or effect any full term of the actions set forth above in this subsection 4(a)(iLease (including any renewal or purchase options which Lessee has contracted to pay);
(d) with or without terminating this Lease, recover from Lessee damages, as liquidated damages for loss or a bargain and not as a penalty, in an amount equal to the sum of (i) any accrued and unpaid rent as of the date of entry of judgment in favor of Lessor plus interest at the rate of 18% per annum or at the highest rate permitted by law, whichever is less, (ii) Any proceeding shall the present value of all future rentals reserved in the lease and contracted to be instituted against paid over the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any unexpired term of the actions sought in such proceeding (including, without limitation, Lease discounted at a rate equal to the entry discount rate of any order for relief against it or the appointment Federal Reserve Bank of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurCleveland; or
(iii) The Company shall fail all commercially reasonable costs and expenses incurred by Lessor in any repossession, recovery, storage, repair, sale, re-lease or other disposition of the Equipment, including reasonable attorney's fees and costs incurred in connection therewith or otherwise resulting from Lessee's default; (iv) estimated residual value of the Equipment (which is defined as the Fair Market Sales Value of the Equipment immediately prior to pay the Event of Default, but in no event an amount less than 20% of the Equipment's original cost to Lessor); and (v) any indemnity, if then determinable, plus interest at 18% per annum or the highest rate permitted by law, whichever is less;
(e) if (i) Lessor elects not to sell, re-lease or otherwise dispose of all or part of the Principal when due hereunder;
Equipment or (ii) does so by re-lease which is not made in a manner substantially similar to the applicable Supplement or (iii) the measure of damages under clauses (b) If and (d) above are not allowable under any applicable law, Lessor may recover the market value, if any, as of the Default Date of the rent reasonably estimated by Lessor to be obtainable for the Equipment during the remaining Lease term or any renewal thereof then in effect, plus any accrued and unpaid rent as of the Default Date, and
(f) Lessor may exercise any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof or to rescind this Agreement. For the purpose of this section, the "Fair Market Sales Value" of any Equipment shall mean such value to Lessor net of all expenses and costs whatsoever which would be incidental to the reclamation of the Equipment and the sale thereof as determined (at Lessee's expense) by an independent appraiser selected by Lessor; provided, however, that (i) the "Fair Market Sales Value" of any Equipment shall be zero if Lessor is unable to recover possession thereof in accordance with the terms of clause (a) above, and (ii) if Lessor shall have sold any Equipment prior to any notice given pursuant to clause (b) above, the "Fair Market Sales Value" thereof shall be the net proceeds of such sale after deducting all costs and expenses incurred by Lessor in connection therewith. Except as expressly provided above, no remedy referred to in this section is exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available to Lessor at law or equity; and the exercise or beginning of exercise by Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by Lessor of any other remedies. No express or implied waiver by Lessor of an Event of Default described above has occurredshall constitute a waiver of any other or subsequent Event of Default. To the extent permitted by law, then Lessee waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, re-lease or otherwise use the Holder may, without further notice to the Company, declare the principal amount Equipment in mitigation of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableLessor's damages or which may otherwise limit or modify any of Lessor's rights or remedies.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Master Equipment Lease Agreement (Insurance Management Solutions Group Inc)
Events of Default and Remedies. (a) Any one or more Upon the happening of the following events which shall have occurred and be continuing shall constitute an event of ------------------------------ default with respect to this Note, the whole sum of principal and interest still outstanding pursuant to the terms of this Note shall become due and payable immediately, at the option of the Lender, unless said default is cured within thirty (“Event 30) business days. The following shall constitute events of Default”):default hereunder:
(i1) The Company the failure of the Borrower to pay principal when due and payable; (2) a decree or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it order by a court having jurisdiction in the premises being entered adjudging the Borrower a bankrupt or insolvent, or approving as properly filed a petition seeking dissolutionreorganization, liquidation, winding up, reorganizationreadjustment, arrangement, adjustment, protection, composition or similar relief or composition of it or its debts for the Borrower under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsthe Federal bankruptcy laws, or seeking any other similar applicable Federal or state law, and such decree or order shall have continued undischarged or unstayed for a period of sixty (60) days; or (3) a decree or order of a court having jurisdiction in the entry of any order premises for relief or the appointment of a receiver, trusteeliquidator, custodian trustee or other similar official for such assignee in bankruptcy or insolvency of the Company Borrower, or any subsidiary a substantial part of its property or for the winding-up or liquidation of its affairs, shall have been entered, and such decree or order shall have remained in force discharged or unstayed for a period of sixty (60) days; or (4) any substantial part of the property of the Borrower, on a consolidated basis, shall be sequestered or attached and shall not be returned to the possession of the Borrower or released from such attachment within sixty (60) days thereafter; or (5) the Borrower shall institute proceedings to be adjudicated a voluntary bankrupt or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar applicable Federal or state law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency of it or a substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file make an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Compromise Agreement and Mutual Release (Telenetics Corp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing or conditions shall constitute an event of default (“Event of Default”):
) hereunder: (i) The Company nonpayment, when due, whether by acceleration or otherwise, of principal of or interest on any Indebtedness, or default by Applicant in the performance of any obligation, covenant, term or condition of this Agreement or any subsidiary other agreement between Applicant and Bank; (Aii) shall institute death or judicial declaration of incompetency of Applicant, if any proceeding individual; (iii) the filing by or voluntary case seeking to adjudicate it bankrupt against Applicant of a request or insolvent, or seeking dissolution, petition for liquidation, winding up, reorganization, arrangement, adjustmentadjustment of debts, protectionadjudication as a bankrupt, relief as a debtor or composition of it or its debts other relief under any law relating to the bankruptcy, insolvency or reorganization similar laws of the United States or relief of debtorsany state or territory thereof or any foreign jurisdiction, now or seeking hereafter in effect; (iv) the entry making of any order general assignment by Applicant for relief the benefit of creditors; Applicant shall have made or suffered a transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; the appointment of a receiver, trustee, custodian receiver or other similar official trustee for such the Company or any subsidiary Applicant or for any substantial part assets of its propertyApplicant, or shall consent to the commencement against it of such a proceeding or caseincluding, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceedingwithout limitation, or shall consent to or acquiesce in the appointment of such or taking possession by a receiver"custodian", trusteeas defined in the Federal Bankruptcy Code; the making of any, custodian or similar officialsending notice of any intended, bulk sales; or the institution by or against Applicant of any type of insolvency proceeding (under the Federal Bankruptcy Code or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against or winding up of affairs of, Applicant; (Bv) shall be unable to pay its the sale, assignment, transfer or delivery of all or substantially all of the assets of Applicant; the cessation by Applicant as a going business concern, the entry of judgment against Applicant, other than a judgment for which Applicant is fully insured, if ten days thereafter such judgment is not satisfied, vacated, bonded or stayed pending appeal; or if Applicant is generally not paying Applicant's debts as such debts become due; (vi) the occurrence of any event described in paragraph 6(a)(ii), (iii), (iv) or (v) hereof with respect to any indorser, guarantor or any other party liable for, or shall admit in writing its inability whose assets or any interest therein secures, payment of any Indebtedness (Third Party), or the occurrence of any such event with respect to apply its debts generallyany general partner of Applicant, if Applicant is a partnership; (Cvii) shall make a general assignment for the benefit if any certificate, statement, representation, warranty or audit heretofore or hereafter furnished by or on behalf of creditors; Applicant or (D) shall take any action Third Party, pursuant to authorize or effect any of the actions set forth above in connection with this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventAgreement, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding otherwise (including, without limitation, representations and warranties continued herein), or as an inducement to Bank to extend any credit to or to enter into this or any other agreement with Applicant, proves to have been false in any material respect at the entry time as of which the facts therein set forth were stated or certified, or to have omitted any substantial contingent or unliquidated liability or claim against Applicant or any such Third Party; or, if upon the date of execution of this Agreement there shall have been any materially adverse change in any of the facts disclosed by any such certificate, statement, representation, warranty or audit, which change shall not have been disclosed in writing to Bank at or prior to the time of such execution; (viii) nonpayment by Applicant when due of any order indebtedness for relief against it borrowed money owing to any third party, or the appointment occurrence of a receiverany event which could result in acceleration of payment of any such indebtedness; or (ix) the reorganization, trusteemerger or consolidation of Applicant (or the making of any agreement therefor) without the prior written consent of Bank.
(b) Bank, custodian at its sole election, may declare all or other similar official for it or for any substantial part of its propertyany indebtedness not payable on demand to be immediately due and payable without demand or notice of any kind (including, without limitation, notice of intent to accelerate and notice of acceleration, all such demands and notice being hereby expressly waived) shall occur; or
upon the happening of any Event of Default (iiiother than an Event of Default under either paragraph 6(a)(iii) The Company shall fail to pay or (iv) hereof), or if Bank in good faith believes that the prospect of payment of all or any part of the Principal when indebtedness or performance of Applicant's obligations under this Agreement or any other agreement now or hereafter in effect between Applicant and Bank is impaired. All or any part of any Indebtedness not payable on demand shall be immediately due hereunder;
(b) If an Event and payable without demand or notice of any kind upon the happening of one or more Events of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount under paragraph 6(a)(iii) or (iv) hereof. The provisions of this Note at the time outstanding, and all other amounts paragraph are not intended in any way to affect any rights of Bank with respect to any Indebtedness which may now or hereafter be payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableon demand.
(c) The Company covenants Applicant agrees that in case the Principal any notice of the Note becomes due and payable by declaration sale, disposition or otherwise, then the Company will pay in cash other intended action with respect to the Holder Collateral or otherwise which is required by law and which is given at least five (5) days prior to such action shall constitute reasonable notice to Applicant. Upon the existence or occurrence of an Event of Default, Bank may require Applicant to assemble the Collateral and make it available to Bank at a place or places designated by Bank, and Bank may use and operate the Collateral.
(d) Bank's rights and remedies under this NoteAgreement shall be those of a secured party under the Uniform Commercial Code and under any other applicable law, as the whole amount that then shall have become due same may from time to time be in effect, in addition to those rights granted herein and payable on this Note for Principal. In case the Company shall fail forthwith in any other agreement now or hereafter in effect between Applicant and Bank, and to pay such amount, the Holder may commence an action or proceeding those rights otherwise available at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableequity.
Appears in 1 contract
Events of Default and Remedies. The occurrence of any of the following shall be an "Event of Default" hereunder: (a) Any one failure of Borrower to make any payment when due under this Note or more under any other note or obligation of Borrower to Lender; (b) an Event of Default under the Security Documents, or any default under any of the following events which shall that does not have occurred and be continuing shall constitute an event a defined set of default (“Event "Events of Default”):
" and the lapse of any notice or cure period provided therein: any other agreement, document or instrument between Borrower and Lender; (c) if Borrower shall (i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file make an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
, (ii) Any have a petition initiating any proceeding shall be instituted under the Bankruptcy Code filed by or against the Company seeking to adjudicate it a bankrupt one or insolventmore of them, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of (iii) have a receiver, trustee, or custodian appointed for all or any material part of Borrower’s assets, or (iv) seek to make an adjustment, settlement or extension of their respective debts with his, her or its (as the case may be) creditors generally; (d) a proceeding being filed by or commenced against Borrower for dissolution or liquidation, or Borrower voluntarily or involuntarily terminating or dissolving or being terminated or dissolved; (e) in the event a judgment or writ or order of attachment or garnishment is made and issued against Borrower or Borrower’s property; (f) any representation or warranty made by Borrower to Lender in any document, including but not limited to the Security Documents, or any other documents now or in the future securing the obligations of Borrower to Lender, is false or erroneous in any material respect; (g) the failure of Borrower to observe or perform any covenant or other similar official for the Company or for agreement with Lender contained in any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days document executed in connection with this Note or any of the actions sought Security Documents; (h) in such proceeding the event Lender in good xxxxx xxxxx itself insecure with respect to payment of this Note, or in good faith believes the prospect of payment is impaired, or Lender determines in the exercise of its sole judgment that Lender’s perfection in any of the Collateral is impaired; or (including, without limitation, i) the entry failure of any order for relief against it Borrower to observe or the appointment of a receiver, trustee, custodian perform any covenant or other similar official for it agreement with Lender contained in any document, including but not limited to the Security Documents or for any substantial part documents now or in the future securing the obligations of its property) shall occur; or
(iii) The Company shall fail Borrower to pay Lender. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault: (i) the outstanding principal balance hereunder together with any additional amounts secured by the Security Documents, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstandingoption of the holder and without demand or notice of any kind (which are hereby expressly waived), may be accelerated and all other amounts payable under this Note to be forthwith become immediately due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(cii) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, together with all arrearages of interest will from the whole amount that then date of the occurrence of the Event of Default bear interest at the Default Rate, (iii) Borrower will pay to Lender all reasonable attorneys’ fees, court costs and expenses incurred by Lender in connection with Lender's efforts to collect the indebtedness evidenced by the Note, and (iv) the liability of Borrower hereunder shall have become due be limited to and payable on satisfied exclusively from the Collateral, and Lender’s sole remedy in the event of a default under this Note for Principal. In case is to foreclose its lien and security interest against the Company shall fail forthwith to pay such amountCollateral, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon it being understood that this is a non-recourse Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Non Recourse Commercial Note (Platina Energy Group Inc.)
Events of Default and Remedies. (a) Any Upon the occurrence of any one or more of the following events which shall have occurred and be continuing shall constitute (the “Events of Default, any one an event of default (“Event of Default”):), Landlord shall have the right to exercise any rights or remedies available in this Lease, at law and in equity. Events of Default shall be:
(i) The Company Tenant’s failure to pay any rent or other sum of money payable hereunder within five (5) days after the same becomes due;
(ii) Tenant’s failure to timely perform any subsidiary of the terms, covenants or conditions contained in Section 21 (A“Subordination”) or Section 25 (“Estoppel Certificates”) of this Lease;
(iii) Tenant’s failure to perform any other of the terms, covenants or conditions contained in this Lease (which are not addressed in (i) or (ii) above or (iv), (v) or (vi) below) if not remedied within thirty (30) days after receipt of written notice thereof, or if such failure cannot be remedied within such period, Tenant does not within thirty (30) days after written notice thereof commence such act or acts as shall institute any proceeding be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or voluntary case seeking to adjudicate it acts within ninety (90) days after written notice thereof;
(iv) Tenant shall become bankrupt or insolvent, or seeking dissolutionfile any debtor proceedings, liquidation, winding up, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order file a petition for relief or the appointment of a receiver, trustee, custodian receiver or other similar official trustee for all or substantially all of Tenant’s assets and such petition or appointment shall not have been set aside within sixty (60) days from the Company date of such petition or any subsidiary or for any substantial part of its propertyappointment, or shall consent to the commencement against it of such a proceeding or case, or shall file if Tenant makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; , or (D) shall take any action to authorize petitions tor or effect any of the actions set forth above in this subsection 4(a)(i)enters into an arrangement;
(iiv) Any proceeding shall be instituted against Tenant vacates or abandons the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed Premises for a period of sixty thirty (6030) days or any of the actions sought in such proceeding more;
(including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its propertyvi) shall occurIntentionally deleted; or
(iiivii) The Company shall fail to pay the any part Tenant’s written repudiation or anticipatory breach of the Principal when due hereunder;this Lease.
(b) If In addition to its other rights and remedies, Landlord, upon an Event of Default described above has occurredby Tenant, then shall have the Holder mayimmediate right, after any applicable grace period expressed herein, to terminate and cancel this Lease and/or terminate Tenant’s right of possession and reenter and remove all persons and properties from the Premises and dispose of such property as it deems fit, all without further being guilty of trespass or being liable for any damages caused thereby. If Landlord reenters the Premises, it may either terminate this Lease or, from time to time without terminating this Lease, terminate Tenant’s right of possession and make such alterations and repairs as may be necessary or appropriate to relet the Premises and relet the Premises upon such terms and conditions as Landlord deems advisable without any responsibility on Landlord whatsoever to account to Tenant for any surplus rents collected. No retaking of possession of the Premises by Landlord shall be deemed as an election to terminate this Lease unless a written notice of such intention is given by Landlord to the Company, declare the principal amount of this Note Tenant at the time outstandingof reentry; but, notwithstanding any such reentry or reletting without termination, Landlord may at any time thereafter elect to terminate for such previous default. In the event of an elected termination by Landlord, whether before or after reentry, Landlord may recover from Tenant damages, including the costs of recovering the Premises and any costs incurred in reletting the Premises, and all other amounts payable under this Note Tenant shall remain liable to Landlord for the total Annual Rent (which may at Landlord’s election be accelerated to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable in full as of the Event of Default and recoverable as damages in a lump sum) as would have been payable by declaration or otherwiseTenant hereunder for the remainder of the term less the rents actually received from any reletting or, then at Landlord’s election, less the Company will pay reasonable rental value of the Premises for the remainder of the term. In determining the Annual Rent which would be payable by Tenant subsequent to default, except with respect to Minimum Rent (which shall be calculated in cash accordance with Section 1(g) hereof), the Annual Rent for each Lease Year of the unexpired term shall be equal to the Holder of Annual Rent payable by Tenant for the last Lease Year prior to the default, subject to any adjustments thereto provided for herein. If any rent owing under this NoteLease is collected by or through an attorney, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith Tenant agrees to pay such amount, Landlord’s reasonable attorneys’ fees to the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding extent allowed by applicable law. Landlord shall use reasonable efforts to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablemitigate its damages.
Appears in 1 contract
Samples: Lease Agreement (Novan, Inc.)
Events of Default and Remedies. (a) Any one We may cancel any Contract and liquidate our position in the currency of such Contract if performance of the Contract by you or more us becomes unlawful as a result of the adoption of, or any change in, any applicable law after the date on which the Contract is entered into, or as a result of the promulgation of or any change in, or in the interpretation by any court or tribunal or regulatory authority with competent jurisdiction of, any applicable law after such date. Upon the occurrence and at any time during the continuance of any of the following events which shall (each, an "Event of Default"), we may also cancel any or all the outstanding Contracts and liquidate our position in the currency of such Contracts and setoff against any of your cash, deposit accounts, securities, securities accounts or other property we hold or any obligation we have occurred and be continuing shall constitute an to you to recover any amounts you owe to us as a result of, or in connection with, such cancellation or liquidation: (a) you fail to give us settlement instructions as provided in this Agreement; (b) you fail for any other reason to settle a Contract on its Settlement Date; (c) you fail to perform any of your agreements or obligations under this Agreement or any Contract; (d) any representation or warranty made by you to us under this Agreement or any Contract is incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated; (e) a default, event of default or other similar condition or event (“Event however described) occurs under one or more agreements or instruments relating to any of Default”):
your obligations (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money ("Indebtedness") which has resulted in such Indebtedness becoming, or becoming capable at such time of being declared, due and payable under such agreements or instruments, before it would otherwise have been due and payable; (f) you (i) The Company dissolve or any subsidiary liquidate, (Aii) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its are not generally paying your debts as such debts they become due, (iii) become insolvent, however such insolvency may be evidenced, or shall admit in writing its inability to apply its debts generally; (Civ) shall make a any general assignment for the benefit of creditors; (g) a petition is filed by or (D) shall take any action to authorize against you seeking your liquidation or effect any reorganization under the Bankruptcy Reform Act, Title 11 of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking United States Code, as amended or recodified from time to adjudicate it a bankrupt or insolventtime, or seeking dissolutiona similar action is brought by or against you under any federal, liquidationstate or foreign law; (h) a proceeding is instituted by or against you for any relief under any bankruptcy, winding up, reorganization, arrangement, adjustment, protection, insolvency or other law relating to the relief of debtors, reorganization, readjustment or seeking the entry extension of indebtedness or composition with creditors; (i) a custodian or a receiver is appointed for, or a writ or order of attachment, execution or garnishment is issued, xxxxxd or made against, any of your property or assets; (j) an application is made by any of your judgment creditors for an order for relief directing us to pay over money that we hold from you or the appointment to deliver other of a receiver, trustee, custodian your property; (k) any government authority or other similar official for the Company or for any court takes possession of any substantial part of its propertyyour property or assets or assumes control over your affairs, and either or (l) we in our sole discretion make a commercially reasonable determination that such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail cancellation is necessary to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableprotect us.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute As used herein, an event of default (“Event of Default”):"EVENT OF DEFAULT" occurs if:
(i) The the Company or defaults in the payment of principal and/or interest when the same becomes due and payable, and such failure is not cured within five (5) days after the Company receives written demand from Holder to remedy the same;.
(ii) the Company fails to comply with any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventother provision contained in this Series 1 Bridge Note, the Purchase Agreement, the Warrant, the Repricing Warrant, or seeking dissolutionthe Registration Rights Agreement, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief and such failure is not cured within ten (10) days after the Company receives written demand from Holder to remedy the same;
(iii) the Company defaults in any payment of principal of or composition interest on any Debt (excluding trade payables) in excess of it $100,000 beyond any period of grace provided with respect thereto and the effect of such failure is to cause the holder of such Debt to accelerate the Debt such that such Debt becomes due prior to its stated maturity;
(iv) any representation or its debts under warranty made in writing by or on behalf of (i) the Company in the Purchase Agreement or in any law relating writing furnished in connection with or pursuant to bankruptcy, insolvency the Purchase Agreement or reorganization or relief of debtorsin connection with the transactions contemplated by this Agreement, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such (ii) the Company or any subsidiary or for any substantial part of its propertyin the Registration Rights Agreement, or (iii) the Company in the Escrow Agreement, shall consent to the commencement against it of such a proceeding or case, or shall file an answer be false in any such case material respect on the date as of which made;
(v) the Company makes an assignment for the benefit of creditors or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay is generally not paying its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(iivi) Any proceeding shall be instituted against any order or decree for relief in respect of the Company seeking to adjudicate it a bankrupt or insolventis entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, or seeking dissolutionliquidation or similar law, whether now or hereafter in effect (herein called the "BANKRUPTCY LAW"), of any jurisdiction;
(vii) the Company petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or similar official of debtorsthe Company, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of the assets of the Company, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings relating to the Company under the Bankruptcy Law of any other jurisdiction;
(viii) any petition or application described in Section 10(a)(vi) above is filed, or any such proceedings are commenced, against the Company and the Company by any act indicates its propertyapproval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings, and either such proceeding shall not have been dismissed order, judgment, or shall not have been stayed decree remains unstayed and in effect for a period of more than sixty (60) days days;
(ix) any order, judgment, or decree is entered in any proceedings against the Company decreeing the dissolution of the actions sought Company and such order, judgment, or decree remains unstayed and in such proceeding effect for more than sixty (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property60) shall occurdays; or
(iiix) The a final judgment (not fully covered by insurance) in an amount in excess of $100,000 is rendered against the Company shall fail and, within ten (10) business days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within ten (10) days after the expiration of any such stay, such judgment is not discharged; or
(xi) the Company fails to pay the any part obtain shareholder approval for its proposed increase in authorized capital stock from 50,000,000 shares of the Principal when due hereunder;Common Stock to 93,000,000 shares of Common Stock at its shareholder meeting scheduled for August 27, 1999.
(b) If Upon the occurrence of an Event of Default described above has occurredin subsection (vi), then the Holder may(vii), without further notice to the Companyor (viii) of Section 10(a), declare the principal amount of and accrued interest on this Series 1 Bridge Note at the time outstanding, and all other amounts payable under this Note to be forthwith shall automatically become immediately due and payable, whereupon such without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Company. If any other Event of Default exists, Holder may, in addition to the exercise of any right, power, or remedy permitted to Holder by law, declare (by written notice or notices to the Company) the entire principal of and all such amounts shall become and interest accrued on this Series 1 Bridge Note to be forthwith due and payable, and this Series 1 Bridge Note shall thereupon become immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by the Company. Upon such declaration, the Company will immediately pay to Holder of this Series 1 Bridge Note the then outstanding principal of and accrued and unpaid interest on the Series 1 Bridge Notes. If at any time after acceleration of the maturity of the Series 1 Bridge Notes, the Company shall pay all arrears of interest and all payments on account of principal which shall have become due other than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rate specified in the Series 1 Bridge Notes) and all Events of Default (other than nonpayment of principal of or interest on this Series 1 Bridge Note due and payable solely by virtue of acceleration) shall be remedied or waived by Holder by written notice to the Company may rescind and annul the acceleration and its consequences, but such action shall not affect any subsequent Event of Default or impair any right consequent thereon.
(c) The Company covenants that in case the Principal of the Note becomes due and payable A delay or omission by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, Series 1 Bridge Note in exercising any right or remedy arising upon an Event of Default shall not impair such right or remedy or constitute a waiver of or an acquiescence in the whole amount that then Event of Default.
(d) If any Event of Default shall have become due occur and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amountbe continuing, the Holder of this Series 1 Bridge Note may commence an proceed to protect and enforce their rights under this Agreement and this Series 1 Bridge Note by exercising such remedies as are available to such Holder either by suit in equity or by action at law, or proceeding both, whether for specific performance of any covenant or other agreement contained in this Agreement or in aid of the exercise of any power granted in this Agreement. No remedy conferred in this Agreement upon Holder is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or now or hereafter existing at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment by statute or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableotherwise.
Appears in 1 contract
Samples: Bridge Note Purchase and Security Agreement (Tracker Corp of America)
Events of Default and Remedies. If at any time (any of the following, an "EVENT OF DEFAULT"):
(a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
Contractor fails to (i) The Company carry out engineering, fabrication, supply, delivery, installation and testing of the Work on or with respect to any Critical Path Item at the rate of progress required by the Milestone Schedule, and (ii) prepare, implement and comply with a Schedule Recovery Plan in respect of any such delayed or incomplete Work, in each case, within the time periods and in accordance with the provisions set forth in Section 5.2 hereof; or
(b) the Contractor commits any material breach of, or fails in any material respect to comply with and observe, any provision of this Contract; or
(c) the Contractor abandons the Work for a period in excess of [REDACTED] or intimates without lawful cause or justification that the Work will not or cannot be completed; or
(d) the Contractor shall make a general assignment for the benefit of creditors, or any subsidiary (A) proceeding shall institute any proceeding or voluntary case be instituted by the Contractor seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it the Contractor or its debts under any law Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian trustee or other similar official for such the Company or any subsidiary Contractor or for any substantial part of its property, property or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Contractor shall take any corporate action to authorize or effect any of the actions set forth above in this subsection 4(a)(iSection 24.1(d); or
(e) an involuntary petition shall be filed or an action or proceeding otherwise commenced against the Contractor seeking reorganization, arrangement or readjustment of the Contractor's debts or for any other relief under any bankruptcy or insolvency act or Law, now or hereafter existing and remain undismissed or unvacated for a period of [REDACTED]; or
(f) a receiver, assignee, liquidator, trustee or similar officer for the Contractor or for all or any part of its property shall be appointed involuntarily; or
(g) the Contractor shall file a certificate of dissolution under applicable Law or shall be liquidated, dissolved or wound up or shall commence or have commenced against it any action or proceeding for dissolution, winding up or liquidation, or shall take any corporate action in furtherance thereof; or
(h) the Contractor either:
(i) fails to make prompt payment of any undisputed invoice due to any Subcontractor or otherwise for materials or labor; or
(ii) repudiates or is in default with respect to any of its obligations to a Subcontractor; or
(i) the Contractor fails, after being notified thereof by the Developer, to promptly correct any Defective Work during performance of the Work or within the Warranty Period; or
(j) any representation or warranty made by the Contractor herein or in any certificate, financial statement or other document furnished to any Owner Person by or on behalf of the Contractor shall prove to be false or misleading in any material respect as of the time made, confirmed or furnished; then, upon the occurrence of any Event of Default referred to in paragraph (a), (b), (i) or (j) of this Section 24.1, the Developer may, by Notice in writing, advise the Contractor of such Event of Default and the Contractor shall have [REDACTED] to correct such Event of Default to the satisfaction of the Developer PROVIDED, HOWEVER, that, if such Event of Default cannot be cured in such [REDACTED] period through the diligent efforts of Contractor, but can be cured in a longer period without there occurring any failure to meet the Milestone Schedule, the Contractor shall have an additional period, not to exceed [REDACTED], so long as it shall commence the cure during such [REDACTED] period and diligently pursue such cure. If the Contractor fails to correct any such Event of Default to the satisfaction of the Developer within such [REDACTED] (or subject to the conditions set forth in the previous sentence, such longer period), or, upon the occurrence of any other Event of Default, then the Developer on behalf of the Owners may, upon written Notice (a "NOTICE OF EXERCISE OF REMEDIES") to the Contractor, exercise any or all of the following rights and remedies:
(A) exercise their rights under the Contractor Security;
(B) exercise their rights with respect to the withholding of payments to the Contractor in accordance with Section 12.5 hereof;
(C) take the Work wholly or partly out of the control of the Contractor or any other Person in whose control or possession the Work or any part of it may be, and cause to be completed the same in accordance with Section 25 hereof (a "TAKE OVER");
(iiD) Any proceeding shall be instituted against the Company seeking to adjudicate it terminate this Contract in accordance with Section 26 hereof (such event, a bankrupt or insolvent"TERMINATION FOR DEFAULT"; such Notice of Exercise of Remedies, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur"NOTICE OF TERMINATION FOR DEFAULT"); or
(iiiE) exercise any and all rights and remedies they may have under law or equity, including seeking specific performance and the recovery of damages, subject, in any event, to the provisions of Section 28 hereof. The Company shall fail to pay foregoing remedies are cumulative, and the any part Developer on behalf of the Principal when due hereunder;
Owners may elect one or more thereof without prejudice to any other right or remedy the Owners may have, subject, however, to Section 28 hereof. Notwithstanding any of the foregoing, Contractor shall be entitled upon a Termination for Default to be paid its Reimbursable Costs (band any applicable Fixed Fee and Incentive Fee so long as the Contractor has met the criteria for such fee pursuant to Section 12.2 hereof) If an Event of Default described above has occurred, then for Work performed in accordance with this Contract and the Holder may, without further notice Contract Documents by the Contractor up to the Companyeffective date of such termination, declare less any amount owing to the principal amount Owners hereunder, the latter of this Note at which amounts may be applied by the time outstanding, Owners to the payment and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal performance of any outstanding obligations of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableContractor hereunder.
Appears in 1 contract
Samples: Engineering, Procurement and Construction Contract (Viatel Inc)
Events of Default and Remedies. (a) Any one Section 6.1 The following shall each be "Events of Default" under this Project Agreement: A default in the performance or more observance of any of the following events which shall have occurred covenants, conditions or agreements on the part of the Company in this Project Agreement and the continuance thereof for a period of thirty (30) days after written notice thereof is given by the Agency to the Company, provided that, if such default is capable of cure but cannot be continuing shall constitute cured within such thirty (30) day period, the failure of the Company to commence to cure within such thirty (30) day period and to prosecute the same with due diligence; the occurrence of an event of default (“Event of Default”):
(i) The Company Default under the Leaseback Agreement or any subsidiary (A) shall institute any proceeding Tax Agreement; the dissolution or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition liquidation of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief Company; or the appointment of a receiver, trustee, custodian or other similar official for such failure by the Company to release, stay, discharge, lift or bond within thirty (30) days any subsidiary execution, garnishment, judgment or for any substantial part of its property, or shall consent to the commencement against it attachment of such a proceeding consequence as may impair its ability to carry on its operations; or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in failure by the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable Company generally to pay its debts as such debts they become due, ; or shall admit in writing its inability to apply its debts generally; (C) shall make a general an assignment by the Company for the benefit of creditors; or the commencement by the Company (Das the debtor) shall take of a case in bankruptcy or any action to authorize proceeding under any other insolvency law; or effect the commencement of a case in bankruptcy or any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted under any other insolvency law against the Company seeking to adjudicate it (as the debtor), wherein a bankrupt court having jurisdiction in the premises enters a decree or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it the Company as the debtor, or such case or proceeding is consented to by the Company or remains undismissed for forty (40) days, or the appointment of Company consents to or admits the material allegations against it in any such case or proceeding; or a receiver, trustee, custodian receiver or other similar official agent (however named) is appointed or authorized to take charge of substantially all of the property of the Company for it the purpose of enforcing a lien against such Property or for any substantial part the purpose of its property) shall occur; or
(iii) The Company shall fail to pay the any part general administration of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity Property for the collection benefit of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablecreditors.
Appears in 1 contract
Samples: Project Agreement
Events of Default and Remedies. (aA) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”)::
(i) The Company a default in the payment when due (together with any applicable grace period) of all or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialObligations; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief an event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any default stipulated in Section 8.1 of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) Credit Agreement shall occuroccur and be continuing; or
(iii) The Company shall fail to pay a default by the Owner occurs in the due and punctual observance of any part of the Principal covenants contained in subsections (A)(i), (B) (other than subclauses (iv), (vi) and (xiii) thereof), (F), (G), (I), (K), (L), (M), (N), (O), (P), (R), (S), (T), (U) or (V) of Section 5 of this Mortgage; or
(iv) a default by the Owner occurs in the due and punctual observance of any of the covenants contained in subsections (C), (D), (E), (H), (J), or (Q) or subclauses (ii) and (iii) of subsection (A) and subclauses (iv), (vi) or (xiii) of subsection (B) of Section 5 of this Mortgage and such default continues unremedied for a period of thirty (30) days; or
(v) it becomes impossible or unlawful for the Owner to fulfill any of the covenants and obligations contained in this Mortgage and the Mortgagee reasonably considers that such impossibility or illegality will have a material adverse effect on its rights under this Mortgage or the enforcement thereof.
(B) If any Event of Default shall occur and be continuing, the Mortgagee shall be entitled:
(i) to demand payment by written notice to the Owner of the Obligations, whereupon such payment shall be immediately due and payable, anything contained in the Credit Agreement, the Note, this Mortgage or any of the other relevant Transaction Documents to the contrary notwithstanding and without prejudice to any other rights and remedies of the Mortgagee or the Creditors, as the case may be, under the Credit Agreement, the Note, this Mortgage or any of the other relevant Transaction Documents, provided, however, that if, before any sale of the Vessel, all defaults shall have been remedied in a manner satisfactory to the Mortgagee, the Mortgagee may waive such defaults by written notice to that effect to the Owner; but no such waiver shall extend to or affect any subsequent or other default or impair any rights and remedies consequent thereon;
(ii) at any time and as often as may be necessary to take any such action as the Mortgagee may in its discretion deem advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees of counsel) so incurred by the Mortgagee in or about the protection of such security shall be repayable to it by the Owner promptly after demand, together with interest thereon at the rate provided for in Section 5(Q) hereof from the date whereon such expense or liability was incurred by the Mortgagee. The Owner shall promptly execute and deliver to the Mortgagee such documents or cause promptly to be executed and delivered to the Mortgagee such documents, if any, and shall promptly do and perform such acts, if any, as in the opinion of the Mortgagee or its counsel may be necessary or advisable to facilitate or expedite the protection, maintenance and enforcement of the security created by this Mortgage;
(iii) to exercise all the rights and remedies in foreclosure and otherwise given to the Mortgagee by any applicable law, including those under the provisions of the Maritime Law;
(iv) to take possession of the Vessel, wherever the same may be, without prior demand and without legal process (when permissible under applicable law) and cause the Owner or other Person in possession thereof forthwith upon demand of the Mortgagee to surrender to the Mortgagee possession thereof as demanded by the Mortgagee, and by notice to the Owner, request that the crew be ordered to remain onboard the Vessel, that the Master of the Vessel be ordered to sail the Vessel at the cost of the Owner to any port designated by the Mortgagee and/or that the Owner take such action regarding the Vessel as may be requested by the Mortgagee;
(v) to require that all policies, contracts and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such adjusters, brokers or other insurers as the Mortgagee may nominate;
(vi) to collect, recover, compromise and give a good discharge for all claims then outstanding or thereafter arising under the Insurances or any of them and to take over or institute (if necessary using the name of the Owner) all such proceedings in connection therewith as the Mortgagee in its absolute discretion deems advisable and to permit the brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
(vii) to discharge, compound, release or compromise claims against the Owner in respect of the Vessel which have given or may give rise to any charge or lien on the Vessel or which are or may be enforceable by proceedings against the Vessel;
(viii) to take appropriate judicial proceedings for the foreclosure of this Mortgage and/or for the enforcement of the Mortgagee's rights hereunder or otherwise; recover judgment for any amount due hereunderby the Owner in respect of the Credit Agreement, the Note, this Mortgage, or any of the other relevant Transaction Documents and collect the same out of any property of the Owner;
(ix) to sell the Vessel at public auction, free from any claim of or by the Owner of any nature whatsoever by first giving notice of the time and place of sale with a general description of the property in the following manner:
(a) by publishing such notice for ten (10) consecutive days in a daily newspaper of general circulation published in New York City;
(b) If an Event if the place of Default described above has occurredsale should not be New York City, then the Holder mayalso by publication of a similar notice in a daily newspaper, without further notice to the Companyif any, declare the principal amount of this Note published at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.place of sale; and
(c) The Company covenants that in case by sending a similar notice by facsimile confirmed by registered mail to the Principal Owner at its address hereinafter set forth at least fourteen (14) days prior to the date of sale; Such sale of the Note becomes due Vessel may be held at such place as the Mortgagee in such notices may have specified, or such sale may be adjourned by the Mortgagee from time to time by announcement at the time and payable by declaration place appointed for such sale or otherwise, then for such adjourned sale and without further notice or publication the Company will pay in cash Mortgagee may make such sale at the time and place to which the same shall be so adjourned; and such sale may be conducted without bringing the Vessel to the Holder place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at such sale.
(x) pending sale of this Notethe Vessel (either directly or indirectly) to manage, charter, lease, insure, maintain and repair the whole amount Vessel and to employ or lay up the Vessel upon such terms, in such manner and for such period as the Mortgagee in its absolute discretion deems expedient and for the purpose aforesaid the Mortgagee shall be entitled to do all acts and things incidental or conducive thereto and in particular to enter into such arrangements respecting the Vessel, her insurance, management, maintenance, repair, classification and employment in all respects as if the Mortgagee were the owner of the Vessel and without being responsible for any loss thereby incurred;
(xi) to recover from the Owner on demand any such losses as may be incurred by the Mortgagee in or about the exercise of the powers vested in the Mortgagee under Section 7(B)(x) above with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such losses were incurred by the Mortgagee; and
(xii) to recover from the Owner on demand all expenses, payments and disbursements (including reasonable fees and expenses of counsel) incurred by the Mortgagee in or about or incidental to the exercise by it of any of the powers vested in it hereunder together with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such expenses, payments or disbursements were incurred by it; PROVIDED, ALWAYS, that then any sale of the Vessel or any interest therein by the Mortgagee pursuant to and in compliance with Section 7(B)(ix) above shall have become due operate to divest all right, title and payable on this Note interest of the Owner, its successors and assigns, in or to the Vessel so sold and upon such sale the purchaser shall not be bound to see or inquire whether the Mortgagee's power of sale has arisen in the manner herein provided and the sale shall be deemed to be within the power of the Mortgagee and the receipt of the Mortgagee for Principalthe purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor. In case the Company Mortgagee shall fail forthwith have proceeded to pay enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such amountproceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Mortgagee, then and in every such case the Holder may commence an action Owner and the Mortgagee shall be restored to their former positions and rights hereunder with respect to the property, subject or proceeding at law or in equity for the collection intended to be subject to this Mortgage, and all rights, remedies and powers of the sums so due and unpaid, and may prosecute any Mortgagee shall continue as if no such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableproceedings had been taken.
Appears in 1 contract
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Lessee fails to pay an installment of rent on or more before the date when the same becomes due and payable and such failure continues for a period of five days;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein.
(ic) The Company Lessee shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Lessee hereunder and such failure shall continue uncured for ten (A10) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief Lessee by Lessor or the appointment of then assignee hereof.
(d) Lessee ceases doing business as a receivergoing concern, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any pay its debts as they become due, files a voluntary petition of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsthe petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either or if it or its shareholders shall take any action looking to its dissolution or liquidation.
(e) Within forty-five (45) days after the commencement of any proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding proceedings shall not have been dismissed dismissed, or shall not have been stayed for a period of sixty if within forty- five (6045) days after the appointment without Lessee's consent or any of the actions sought in such proceeding (including, without limitation, the entry acquiescence of any order for relief against trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; ornot be vacated.
(iiif) The Company shall fail Lessee defaults in the performance or observation of any term, condition or covenant of any loan agreement, indenture, trust agreement, lease or similar agreement to pay the which Lessee is a party or by which Lessee is bound and such default continues beyond any part of the Principal when due hereunderapplicable cure period;
(bg) If Lessee enters into any transaction which adversely affects a significant portion of the business value of Lessee and which affects the ability of the Lessee to repay the Lessee's obligations under the Lease. Upon the occurrence of an Event of Default described above has occurredDefault, then Lessor may at its option do any one or more of the Holder may, without further following: (i) by notice to the CompanyLessee terminate this Lease as to any or all Equipment Schedules; (ii) whether or not this Lease is terminated as to any or all Equipment Schedules, declare the principal amount take possession on not less than three (3) days' notice of this Note at the time outstanding, and any or all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Equipment listed on any or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteall Equipment Schedules, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee and Lessee hereby agrees, to return said Equipment to Lessor as provided in this Lease; (iii) recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, all past due amounts as well as an amount equal to the present value of all monies adjudicated or decreed to be paid by Lessee during the remaining Initial Term or any successive period then in effect, calculated by discounting at the rate of six percent (6%) per annum compounded monthly, which payment shall become immediately due and payable; and (iv) sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine (and Lessor shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar equipment owned or leased by Lessor). In the event that Lessee shall have first paid to Lessor or its assigns the liquidated damages referred to in (iii) above, Lessee shall thereafter be entitled to receive all rentals or proceeds received from any reletting of the Equipment during the balance of the Initial Term (after deduction of Lessor's expected residual value of the Equipment at the expiration of the Initial Term or any extension thereof and of all expenses incurred in connection therewith) said amount never to exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor shall have no obligation to sell the Equipment. Lessee shall in any event remain fully liable for reasonable damages as provided by law and for all costs and expenses incurred by Lessor or its assigns on account of such default including but not limited to all court costs and reasonable attorney's fees. Lessee hereby agrees that, in any event, it will be liable for any deficiency after any lease or other disposition of the Equipment. The rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. (aA) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”)::
(i) The Company a default in the payment when due (together with any applicable grace period) of all or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialObligations; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief an event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any default stipulated in Section 8.1 of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) Credit Agreement shall occuroccur and be continuing; or
(iii) The Company shall fail to pay a default by the Owner occurs in the due and punctual observance of any part of the Principal covenants contained in subsections (A)(i), (B) (other than subclauses (iv), (vi) and (xiii) thereof), (F), (G), (I), (K), (L), (M), (N), (O), (P), (R), (S), (T), (U) or (V) of Section 5 of this Mortgage; or
(iv) a default by the Owner occurs in the due and punctual observance of any of the covenants contained in subsections (C), (D), (E), (H), (J), or (Q) or subclauses (ii) and (iii) of subsection (A) and subclauses (iv), (vi) or (xiii) of subsection (B) of Section 5 of this Mortgage and such default continues unremedied for a period of thirty (30) days; or
(v) it becomes impossible or unlawful for the Owner to fulfill any of the covenants and obligations contained in this Mortgage and the Mortgagee reasonably considers that such impossibility or illegality will have a material adverse effect on its rights under this Mortgage or the enforcement thereof.
(B) If any Event of Default shall occur and be continuing, the Mortgagee shall be entitled:
(i) to demand payment by written notice to the Owner of the Obligations, whereupon such payment shall be immediately due and payable, anything contained in the Credit Agreement, the Notes, this Mortgage or any of the other relevant Loan Documents to the contrary notwithstanding and without prejudice to any other rights and remedies of the Mortgagee or the other Finance Parties, as the case may be, under the Credit Agreement, the Notes, this Mortgage or any of the other relevant Loan Documents, provided, however, that if, before any sale of the Vessel, all defaults shall have been remedied in a manner satisfactory to the Majority Lenders, the Mortgagee may waive such defaults by written notice to that effect to the Owner; but no such waiver shall extend to or affect any subsequent or other default or impair any rights and remedies consequent thereon;
(ii) at any time and as often as may be necessary to take any such action as the Mortgagee may in its discretion deem advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees of counsel) so incurred by the Mortgagee in or about the protection of such security shall be repayable to it by the Owner promptly after demand, together with interest thereon at the rate provided for in Section 5(Q) hereof from the date whereon such expense or liability was incurred by the Mortgagee. The Owner shall promptly execute and deliver to the Mortgagee such documents or cause promptly to be executed and delivered to the Mortgagee such documents, if any, and shall promptly do and perform such acts, if any, as in the opinion of the Mortgagee or its counsel may be necessary or advisable to facilitate or expedite the protection, maintenance and enforcement of the security created by this Mortgage;
(iii) to exercise all the rights and remedies in foreclosure and otherwise given to the Mortgagee by any applicable law, including those under the provisions of the Maritime Law;
(iv) to take possession of the Vessel, wherever the same may be, without prior demand and without legal process (when permissible under applicable law) and cause the Owner or other Person in possession thereof forthwith upon demand of the Mortgagee to surrender to the Mortgagee possession thereof as demanded by the Mortgagee, and by notice to the Owner, request that the crew be ordered to remain onboard the Vessel, that the Master of the Vessel be ordered to sail the Vessel at the cost of the Owner to any port designated by the Mortgagee and/or that the Owner take such action regarding the Vessel as may be requested by the Mortgagee;
(v) to require that all policies, contracts and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such adjusters, brokers or other insurers as the Mortgagee may nominate;
(vi) to collect, recover, compromise and give a good discharge for all claims then outstanding or thereafter arising under the Insurances or any of them and to take over or institute (if necessary using the name of the Owner) all such proceedings in connection therewith as the Mortgagee in its absolute discretion deems advisable and to permit the brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
(vii) to discharge, compound, release or compromise claims against the Owner in respect of the Vessel which have given or may give rise to any charge or lien on the Vessel or which are or may be enforceable by proceedings against the Vessel;
(viii) to take appropriate judicial proceedings for the foreclosure of this Mortgage and/or for the enforcement of the Mortgagee’s rights hereunder or otherwise; recover judgment for any amount due hereunderby the Owner in respect of the Credit Agreement, the Notes, this Mortgage, or any of the other relevant Loan Documents and collect the same out of any property of the Owner;
(ix) to sell the Vessel at public auction, free from any claim of or by the Owner of any nature whatsoever by first giving notice of the time and place of sale with a general description of the property in the following manner:
(a) by publishing such notice for ten (10) consecutive days in a daily newspaper of general circulation published in New York City;
(b) If an Event if the place of Default described above has occurredsale should not be New York City, then the Holder mayalso by publication of a similar notice in a daily newspaper, without further notice to the Companyif any, declare the principal amount of this Note published at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.place of sale; and
(c) The Company covenants that in case by sending a similar notice by xxxxxxxxx confirmed by registered mail to the Principal Owner at its address hereinafter set forth at least fourteen (14) days prior to the date of sale; Such sale of the Note becomes due Vessel may be held at such place as the Mortgagee in such notices may have specified, or such sale may be adjourned by the Mortgagee from time to time by announcement at the time and payable by declaration place appointed for such sale or otherwise, then for such adjourned sale and without further notice or publication the Company will pay in cash Mortgagee may make such sale at the time and place to which the same shall be so adjourned; and such sale may be conducted without bringing the Vessel to the Holder place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and any Finance Party may become the purchaser at such sale.
(x) pending sale of this Notethe Vessel (either directly or indirectly) to manage, charter, lease, insure, maintain and repair the whole amount Vessel and to employ or lay up the Vessel upon such terms, in such manner and for such period as the Mortgagee deems expedient and for the purpose aforesaid the Mortgagee shall be entitled to do all acts and things incidental or conducive thereto and in particular to enter into such arrangements respecting the Vessel, her insurance, management, maintenance, repair, classification and employment in all respects as if the Mortgagee were the owner of the Vessel and without being responsible for any loss thereby incurred;
(xi) to recover from the Owner on demand any such losses as may be incurred by the Mortgagee in or about the exercise of the powers vested in the Mortgagee under Section 7(B)(x) above with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such losses were incurred by the Mortgagee; and
(xii) to recover from the Owner on demand all expenses, payments and disbursements (including reasonable fees and expenses of counsel) incurred by the Mortgagee in or about or incidental to the exercise by it of any of the powers vested in it hereunder together with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such expenses, payments or disbursements were incurred by it; PROVIDED, ALWAYS, that then any sale of the Vessel or any interest therein by the Mortgagee pursuant to and in compliance with Section 7(B)(ix) above shall have become due operate to divest all right, title and payable on this Note interest of the Owner, its successors and assigns, in or to the Vessel so sold and upon such sale the purchaser shall not be bound to see or inquire whether the Mortgagee’s power of sale has arisen in the manner herein provided and the sale shall be deemed to be within the power of the Mortgagee and the receipt of the Mortgagee for Principalthe purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor. In case the Company Mortgagee shall fail forthwith have proceeded to pay enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such amountproceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Mortgagee, then and in every such case the Owner and the Mortgagee shall be restored to their former positions and rights hereunder with respect to the property, subject or intended to be subject to this Mortgage, and all rights, remedies and powers of the Mortgagee shall continue as if no such proceedings had been taken.
(C) Notwithstanding the foregoing, it is understood that a Total Loss of the Vessel which is covered by the insurance maintained by Owner pursuant to Section 5(B) hereof shall not be deemed to be a default under this Mortgage, the Holder may commence an action Credit Agreement, the Notes or proceeding at law or in equity for the collection any of the sums so due and unpaidother relevant Loan Documents, and may prosecute or any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableof them.
Appears in 1 contract
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Lessee fails to pay an installment of rent on or more before the date when the same becomes due and payable and such failure continues for a period of ten days;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Lessee shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Lessee hereunder and such failure shall continue uncured for thirty (A30) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief Lessee by Lessor or the appointment of then assignee hereof;
(d) Lessee ceases doing business as a receivergoing concern, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any pay its debts as they become due, files a voluntary petition of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsthe petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or if it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation;
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within sixty (60) days after the appointment without Lessee's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereundernot be vacated;
(bf) If Lessee defaults in the performance or observation of any material term, condition or covenant of its loan agreement, with Silicon Valley Bank ("SVB"), and SVB accelerates the obligations of Lessee due thereunder, or if Lessee is in default in the payment of any obligation in excess of $75,000.00 with respect to any other loan agreement, indenture, trust agreement, lease or similar agreement to which it is a party or by which Lessee is bound and such default continues beyond any applicable cure period;
(g) Lessee enters into any transaction, the effect of which adversely affects (i) a material portion of Lessee's business value and (ii) the ability of Lessee, in Lessor's reasonable judgment, to repay Lessee's obligations under the Lease as they become due. Lessee shall have sixty days, after notice thereof, to cure the default set forth in this Section 9 (g). Upon the occurrence of an Event of Default described above has occurredDefault, then Lessor may at its option do any one or more of the Holder may, without further following: (i) by notice to the CompanyLessee terminate this Lease as to any or all Equipment Schedules; (ii) whether or not this Lease is terminated as to any or all Equipment Schedules, declare the principal amount take possession on not less than three (3) days' notice of this Note at the time outstanding, and any or all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Equipment listed on any or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteall Equipment Schedules, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee and Lessee hereby agrees, to return said Equipment to Lessor as provided in this Lease; (iii) recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, all past due amounts as well as an amount equal to the present value of all monies adjudicated or decreed to be paid by Lessee during the remaining Initial Term or any successive period then in effect, calculated by discounting at the rate of six percent (6%) per annum compounded monthly, which payment shall become immediately due and payable; and (iv) sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine in accordance with the Uniform Commercial Code (and Lessor shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar equipment owned or leased by Lessor). In the event that Lessee shall have first paid to Lessor or its assigns the liquidated damages referred to in (iii) above, Lessee shall thereafter be entitled to receive all rentals or proceeds received from any reletting or sale of the Equipment during the balance of the Initial Term (after deduction of Lessor's expected residual value of the Equipment at the expiration of the Initial Term or any extension thereof and of all expenses incurred in connection therewith) said amount never to exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor shall have no obligation to sell the Equipment. The preceding sentence shall not affect Lessor's obligation to mitigate its damages in accordance with applicable law. Lessee shall in any event remain fully liable for reasonable damages as provided by law and for all costs and expenses incurred by Lessor or its assigns on account of such default including but not limited to all court costs and reasonable attorney's fees. Lessee hereby agrees that, in any event, it will be liable for any deficiency after any lease or other disposition of the Equipment. The rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
Appears in 1 contract
Samples: Master Lease Agreement (SQL Financials International Inc /De)
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Lessee fails to pay any Rent when due under this Lease and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Lessee in the Lease or in any other Lease Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Lessee fails (A) to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Lease and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days unless Lessor waives such failure in Lesor’s sole discretion; (iv) Lessee or any Guarantor shall have consolidated with, merged with or into, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Lessee or any Guarantor (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vi) Lessee fails to return the Equipment or fails to return the Equipment in the required condition at the expiration of the Term; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and any of its other creditors, (viii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee or any Guarantor and Lessor or any affiliate of Lessor; (ix) if Lessee’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (x) a material adverse change in Lessee’s existing or prospective financial condition or results of operations since the date hereof which may affect the ability of Lessee to perform its obligations under the Lease Documents shall occur and be continuing; or (xi) the individuals who as of the date of this Agreement are members of the Board of Directors of the Lessee (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that if the election, or nomination for election by the Lessee’s shareholders, of any new director was approved by a vote of at least a majority of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
(b) Upon the occurrence of an Event of Default, Lessor may exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred be exclusive) and shall be continuing shall constitute an event entitled to recover all its reasonable costs and expenses including incidental and consequential damages (as described in Section 2A-530 of default (“Event of Default”):the Uniform Commercial Code) and attorneys’ fees in enforcing its rights and remedies:
(i) The Company Lessee shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute or all of the Equipment at a location designated by Lessor; and/or to return promptly, at Lessee’s expense, any proceeding or voluntary case seeking all of the Equipment to adjudicate it bankrupt or insolventLessor at such location, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce condition and otherwise in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any accordance with all of the actions set forth above in this subsection 4(a)(i);terms of Section 14 hereof; and/or
(ii) Any proceeding shall be instituted against Lessor may itself or by its agents without breach of the Company seeking to adjudicate it a bankrupt peace or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an with court order for relief or the appointment of a receiver, trustee, custodian or other similar official for process of law, enter upon the Company premises of Lessee or any other location where the Equipment is located and take possession of and render unusable by Lessee any or all of the Equipment, wherever it may be located, without any court order or other process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurpossession; orand/or
(iii) The Company shall fail to pay the Sell, re-lease or otherwise dispose of any part or all of the Principal when due hereunder;Equipment, whether or not in Lessor’s possession, at public or private sale with or without notice to Lessee, with the right of Lessor to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Lessee under this Lease, with Lessee remaining liable for any deficiency and with any excess being retained by Lessor, or retain any and all of the Equipment; and/or
(biv) If Cancel such Equipment Schedule as to any or all of the Equipment; and/or
(v) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Lessee or to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lessor at law or in equity; and/or
(vi) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lessor or any affiliate of this Note at the time outstandingLessor, and all other amounts payable with respect to which Lessee has an interest, against any obligations of Lessee arising under this Note Lease or any other Lease Document, whether or not Lessee has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lessor in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that In addition to the foregoing, Lessee shall pay to Lessor on demand the sum of (i) any and all Rent which is then due or which has accrued to the date of demand and (ii) at Lessor’s option (A) an amount equal to the Stipulated Loss Value (as set forth in case the Principal related Equipment Schedule) as of the Note becomes Rent Payment Date on or immediately preceding the date of demand for the Items of Equipment as Lessor shall specify or (B) all Basic Rent and all other sums, including any tax indemnities becoming due as a result of such Event of Default, for the Term (including any mandatory Renewal Term) and payable by declaration or otherwise, then all amounts due upon the Company will pay in cash expiration of the Term including any return fees and/or any amounts due with respect to the Holder mandatory purchase of the Equipment becoming due under this Lease from the date of demand to the Expiration Date for such Items of Equipment plus the assumed residual value of such Equipment (as determined by Lessor). The Lessor and Lessee agree that Lessor shall be entitled to such amount as damages for loss of bargain and not as a penalty and that such amount is reasonable in light of the anticipated harm to Lessor caused by an Event of Default.
(d) If Lessee pays the full amount referred to in Section 16(c) to Lessor prior to the termination of this NoteLease as it relates to such Items of Equipment, title to the whole amount that then relevant Equipment shall have become due and payable on this Note for Principalimmediately vest in Lessee without representation or warranty by Lessor. In case the Company shall fail forthwith If Lessee fails to pay such amountamount and Lessor subsequently sells, releases or otherwise disposes of such Items of Equipment, the Holder may commence amount due from Lessee under Section 16(c) shall be reduced by an action amount equal to (i) the actual cash proceeds received and retained by Lessor upon any sale or proceeding disposition or (ii) if Lessor leases such Equipment by a lease agreement substantially similar to this Lease, the present value of the rents (discounted at law or the Prime Rate as announced by Fifth Third Bank and in equity effect at the time of demand plus 2.00%) payable under such subsequent Lease for the collection remaining Term of this Lease (without regard to any Renewal Terms other than the then current Renewal Term (if applicable)), in each case, net of all costs and expenses incurred in connection with such sale, disposition or lease including any incidental damages.
(e) A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, and only with respect to such Items of Equipment as Lessor specifically elects to cancel or terminate by such notice. Except as to any such Items of Equipment with respect to which there is a cancellation or termination, this Lease shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations under this Lease.
(f) Lessee shall indemnify, defend and hold Lessor harmless for any loss, personal injury (including death), or damage to property, suffered by Lessor, its employees or any of its agents in connection with its entry onto the premises of Lessee or any third party hereunder. Each of the sums so due rights and unpaidremedies of Lessor hereunder and under the other Lease Documents is in addition to all of its other rights and remedies hereunder, under the other Lease Documents and may prosecute under applicable law and nothing in this Lease or any other Lease Document shall be construed as limiting any such action right or proceeding remedy. Lessor’s failure to judgment exercise or final decree against Company delay in exercising any right, power or remedy available to Lessor shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lessor of any Event of Default shall not be a waiver by Lessor of any other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablesubsequent Events of Default.
Appears in 1 contract
Samples: Master Equipment Lease Agreement (Advanced Photonix Inc)
Events of Default and Remedies. (a) Any The following shall be an "Event of Default" hereunder if any one or more of the following events which shall have occurred and be continuing shall constitute an event for any reason whatsoever, voluntarily or involuntarily, by operation of default (“Event law or pursuant to or in compliance with any judgment, decree or order of Default”):any court or any order, rule or regulation of any administrative or governmental body:
(i) The Company failure to make the due and punctual payment of interest or any subsidiary principle under this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(Aii) shall institute any proceeding Failure in the performance or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry observance of any order for relief the other covenants, agreements or the appointment conditions of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer Maker contained in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; this note;
(Biii) shall be unable to pay its debts as such debts become due, or shall admit If Maker shall:
(1) Admit in writing its inability to apply pay its debts generally; generally as they become due;
(C2) shall make File a general petition in bankruptcy or a petition or an answer seeking reorganization or to take advantage of any insolvency act or, on a petition in bankruptcy filed against it, be adjudicated a bankrupt;
(3) Make any assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(ii4) Any proceeding shall be instituted against the Company seeking Consent to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian receiver of itself or other similar official for of the Company whole or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiiiv) The Company shall fail to pay occurrence of an Event of Default, under the Agreement, the Settlement Agreement, or any part of the Principal when due hereunderrelated documents thereto, as such term is defined therein;
(b) If Upon the occurrence of an Event of Default described above has occurredDefault, then the Holder may, without further at its option, do any or all of the following: 4
(i) Declare the entire unpaid principle amount of this Note, together with all accrued interest thereon, at the option of Holder, exercised by written notice to the CompanyMaker, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith immediately due and payable;
(ii) Proceed to protect and enforce its rights either by suit in equity and/or by action of law for the specific performance of any covenant or agreement contained in this Note, whereupon such principal and in aid of the exercise of any power granted in this Note, to enforce the payment of all such amounts shall become and be forthwith sums due and payableupon this Note or to enforce any other legal or equitable right of Holder.
(c) The Company covenants that No remedy herein conferred upon Holder is intended to limit or resxxxxx any other remedy available to Holder. Each and every such remedy shall be cumulative and shall be in case the Principal of the Note becomes due and payable addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by declaration statute or otherwise.
(d) No course of dealing between Maker and Holder or any delay on the part of Holder in exercising any rights hereunder shall operate as a waiver of any rights of any Holder hereof.
(e) Should any proceedings be instituted by Holder to recover any moneys due hxxxxxxer, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith Maker agrees to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due all reasonable xxxxrneys fees and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablecosts.
Appears in 1 contract
Samples: Promissory Note (Ilx Inc/Az/)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Medical Center, unless Medical Center disputes the installment payment, such as, without limitation, an incomplete procedure due to faulty Equipment.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Either party shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by such party hereunder and such failure shall continue uncured for twenty (A20) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent days after written notice thereof to the commencement against it of such defaulting party by the other party;
(d) Either party ceases doing business as a proceeding or casegoing concern, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against either party seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without such party's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; ornot be vacated.
(iiif) The Company shall fail to pay Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredby Medical Center, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyMedical Center, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default.
(g) In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
(h) Upon occurrence of an Event of Default by GKF, the Medical Center shall be entitled to liquidated damages for losses of the bargain and not as a penalty in an amount equal to the cost of the leasehold provided by the Medical Center. GKF shall remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by the Medical Center on account of such default, including but not limited, to all court costs and reasonable attorneys' fees. The rights afforded the Medical Center hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 1 contract
Samples: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. (a) 9.1 Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default hereunder:
(ia) The Company Borrower shall default in the payment of principal interest in respect of the Note or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts other amounts payable under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become this Agreement when due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event Any representation, warranty or statement made by the Borrower herein or in connection with the making of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note Loan proves to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.incorrect in any material respect as of the date of the issuance or making thereof,
(c) The Company covenants that Borrower shall default in case the Principal due performance or observance by it of any term, covenant or agreement (other than those referred to in subparts (a) and (b), inclusive, of this Section 9.1) contained in this Agreement and such default shall continue unremedied for a period of 30 days after notice to the Borrower by the Lender or any other holder of the Note;
9.2 When any Event of Default described in subsections (a) to (c), of Section 9.1 has occurred and is continuing, the Lender or the holder of the Note becomes shall have no rights to assets of the Trust other than (i) contributions (other than contributions of employer securities) that are made by the Lender to enable the Borrower to meet its obligations pursuant to the Loan, cash dividends received by the Borrower on the Shares and earnings attributable to the investment of such contributions and dividends and (ii) the Pledged Stock; provided further, however, that the value of Trust assets transferred to the Lender as a result of an Event of Default shall not exceed the amount of the repayment then in default, and, provided further, that so long as the Lender is a "party in interest" within the meaning of ERISA Section 3(14) and a "disqualified person" within the meaning of Section 4975(e)(2) of the Code, a transfer of Trust assets upon default shall be made only if, and to the extent of, the Borrower's failure to meet the loan's payment schedule.
9.3 When any Event of Default has occurred and is continuing the Lender may, in addition to such other rights or remedies as it may have, then or at any time or times thereafter exercise with respect to the Collateral any and all of the rights, options and remedies of a secured party under the Uniform Commercial Code of New York (the "UCC") including without limitation the sale of all or any part of the Collateral at any brokers' board any public or private sale, provided, however that the Lender shall only be able to exercise such rights and remedies to the extent of all interest and principal payments which are due and payable by declaration or otherwise, then as of the Company will pay in cash date of the Event of Default and provided further that prior to such exercise the Lender shall release from the Collateral so much thereof as it would have been required to release under Section 3.4 hereof if the period from the previous December 31 to the Holder date of this such release constituted a Plan Year and no Event of Default had occurred. The net proceeds of any such sale, after deducting all costs and expenses incurred in the collection, protection, sale and delivery of the Collateral (which expenses the Borrower promises to pay) shall be applied first to the payment of any costs and expenses incurred by the Lender in selling or otherwise disposing of the Collateral; second, to the payment of the principal of and the interest on the Note; and, third, ratably as among any other items of the indebtedness hereby secured. Any surplus remaining after the full payment and satisfaction of the foregoing shall be returned to the Borrower or to whomsoever a court of competent jurisdiction shall determine to be entitled thereto. Any requirement of said UCC as to reasonable notice shall be met by the Lender personally delivering mailing notice (by certified mail - return receipt requested) to the Borrower at its address as provided in Section 11.6 hereof at least ten (10) days prior to the event giving rise to the requirement of such notice. In connection with any offer, solicitation or sale of the Collateral, the whole amount that then shall have become due Lender may restrict bidders and payable on this Note for Principal. In case otherwise proceed in whatever manner it reasonably believes appropriate in order to comply or assure compliance with applicable legal requirements pertaining to the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection offer and sale of securities of the sums so due same type as the Collateral.
9.4 The number of shares of Pledged Stock as to which the Lender may exercise the rights set forth in this Section 9 may not exceed that number of shares (then remaining subject to pledge hereunder) which is then equal in current value to the amount in default under the Note. The remedies set forth in this Section 8 may only be exercised to the extent consistent with the restrictions on remedies set forth in Section 408(b)(3) of ERISA and unpaid, the regulations thereunder and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, Section 4975(d)(3) of the monies adjudicated or decreed to be payableCode and the regulations thereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Astoria Financial Corp)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):" under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan or under the terms of any Credit Document (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise).
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing.
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower or of the Facilities; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the federal bankruptcy law.
(4) The Borrower's breach in any material respect of any representation or warranty contained in the Credit Documents or the appointment of a receiverBorrower's failure in any material respect to observe, trusteeperform, custodian or other similar official for it comply with any covenant, condition, or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay agreement in the any Credit Documents on the part of the Principal when Borrower to be observed or performed, other than as referred to in clauses (1) through (3) above, for a period of thirty (30) days after written notice specifying such breach or failure and requesting that it be remedied, given to the Borrower by the Lender, unless the Lender shall agree in writing to an extension of such time prior to its expiration. In the case of any such breach or default that cannot with due hereunder;
diligence be cured within such thirty (b30) If day period but can be wholly cured within a period of time not materially detrimental to the rights of the Lender, to be determined conclusively by the Lender, it shall not constitute an Event of Default described above has occurred, then if corrective action is instituted by the Holder may, without further notice Borrower within the applicable period and diligently pursued until the breach or default is corrected in accordance with and subject to any directions or limitations of time established by the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableLender.
(c5) The Company covenants that occurrence of an "event of default" under the Guaranty (as defined in case the Principal Guaranty).
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document.
(7) The dissolution of the Note becomes due and payable by declaration Borrower.
(8) Any material adverse change in the Borrower's means or otherwise, then ability to perform under the Company will pay Credit Documents.
(9) The occurrence of any other event as a result of which the Lender in cash to good faith believes that the Holder prospect of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or payment in equity for the collection full of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableLoan is impaired.
Appears in 1 contract
Samples: Loan Agreement (Dixie Group Inc)
Events of Default and Remedies. (a) Any Notwithstanding any cure periods described below, the Company shall immediately notify Holder in writing when the Company obtains knowledge of the occurrence of any default specified below. Regardless of whether the Company has given the required notice, the occurrence of one or more of the following events which shall have occurred and be continuing shall will constitute an event of default (“Event of Default”):” under this Subordinated Note:
(i) The the Company fails to pay any principal of or installment of interest on this Subordinated Note when due after a 15-day grace period;
(ii) the Company fails to keep or perform any of its agreements, undertakings, obligations, covenants or conditions under the Purchase Agreement or this Subordinated Note not expressly referred to in another clause of this Section 8 and such failure continues for a period of thirty (30) days after the Company has received written notice thereof;
(iii) any certification made pursuant to the Purchase Agreement by the Company or any subsidiary (A) otherwise made in writing in connection with or as contemplated by the Purchase Agreement or this Subordinated Note by the Company shall institute any proceeding be materially incorrect or voluntary case seeking to adjudicate it bankrupt or insolventfalse as of the delivery date of such certification, or seeking dissolutionany representation to Holder by the Company as to the financial condition or credit standing of the Company is or proves to be false or misleading;
(iv) the dissolution of the Company;
(v) any order or decree is entered by any court of competent jurisdiction directly or indirectly enjoining or prohibiting Holder or the Company from performing any of their obligations under the Purchase Agreement or this Subordinated Note, liquidationand such order or decree is not vacated, winding upand the proceedings out of which such order or decree arose are not dismissed, reorganization, arrangement, adjustment, protection, relief within sixty (60) days after the granting of such decree or composition of it order;
(vi) the Company (a) becomes insolvent or is unable to pay its debts under any law relating as they mature, (b) makes an assignment for the benefit of creditors, (c) admits in writing its inability to bankruptcy, insolvency or reorganization or relief of debtorspay its debts as they mature, or seeking (d) ceases to be a bank holding company or financial holding company under the entry Bank Holding Company Act of any 1956, as amended;
(vii) a court or other governmental agency or body having jurisdiction on the premises shall enter a decree or order for relief or the appointment of a receiver, trusteeliquidator, custodian trustee or other similar official for such in any liquidation, insolvency or similar proceeding with respect to the Company or any subsidiary all or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any substantially all of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief property of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertythe winding up of the affairs or business of the Company, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of within sixty (60) days or any of the actions sought in such proceeding (including, without limitation, after the entry of any such order for relief against it or such appointment, such order or appointment is not vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect; or
(viii) the Company applies for, consents to or acquiesces in the appointment of a receiverreceiver or conservator for itself, trusteeor in the absence of such application, custodian consent or other similar official acquiescence, a receiver or conservator is appointed for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Subordinated Note Purchase Agreement (Eagle Bancorp Montana, Inc.)
Events of Default and Remedies. (a) Any 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at 10 10 the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events which (herein called "Events of Default") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the time of such notice, that is to say:
(a) if default shall constitute an event be made in the due and punctual payment of the principal of this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(“Event c) if default shall be made in the performance or observance of Default”):any covenant, agreement or condition contained in Section 6 hereof;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; or if the Maker or any Subsidiary shall default in the performance or observance of any other agreement, term or condition contained in such obligation or in any agreement under which any such obligation is created, if the effect of any such default is to cause or permit the holder or holders of such obligations (or a trustee on behalf of such holder or holders) to cause such obligation to become due prior to the date of its stated maturity, unless such holder or holders or trustee shall have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a default thereunder;
(f) if the Maker or any Subsidiary shall:
(i) The Company admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act;
(iii) make an assignment for the benefit of creditors;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any subsidiary other applicable law or statute of the United States of America or any State, district or territory thereof;
(Ag) if a court of competent jurisdiction shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvententer an order, judgment, or seeking dissolutiondecree appointing, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition without the consent of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company Maker or any subsidiary Subsidiary, a receiver of the Maker or for any Subsidiary or of the whole or any substantial part of its property, or shall consent to the commencement approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a proceeding court of record against the Maker or caseany Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in not procure a stay of execution thereon within 60 days from the commencement date of entry thereof and within the period during which execution of such judgment shall have been stayed, appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any more of the actions set forth above Events of Default specified in this subsection 4(a)(i);
(ii) Any proceeding Section 8.1 hereof shall have occurred and be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitationcontinuing, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount holder of this Note may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the time outstanding, and all other amounts payable under specific performance of any covenant or agreement contained in this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that or in case the Principal aid of the exercise of any power granted in this Note, or the holder of this Note becomes may proceed to enforce the payment of all sums due and payable by declaration upon this Note or otherwise, then to enforce any other legal or equitable right of the Company will pay in cash to the Holder holder of this Note, .
8.3. No remedy herein conferred upon the whole amount that then holder hereof is intended to be exclusive of any other remedy and each and every such remedy shall have become due be cumulative and payable on this Note for Principal. In case the Company shall fail forthwith be in addition to pay such amount, the Holder may commence an action every other remedy given hereunder or proceeding now or hereafter existing at law or in equity for the collection or by statute or otherwise.
8.4. hereof in exercising any rights hereunder shall operate as a waiver of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablerights of any holder hereof.
Appears in 1 contract
Samples: Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Borrower fails to pay any amount of principal and interest when due under any Note and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Borrower in this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Borrower (A) fails to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Borrower which is not an individual shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Borrower that is an individual dies or becomes permanently and totally disabled; (vi) Borrower (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and Lender or any affiliate of Lender; (viii) nonpayment by Borrower of any Rate Management Obligation when due or the breach by Borrower of any term, provision, or condition contained in any Rate Management Agreement; (ix) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and any of its other creditors, (x) if Borrower’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (xi) Lender shall have determined, in its sole discretion, that a material adverse change in Borrower’s existing or prospective financial condition, management or results of operations since the date hereof which may affect the ability of Borrower to perform its obligations under the Loan Documents has occurred; or (xii) the owners of the capital stock or other units of ownership on the date of this Agreement entitled to vote for the election of the board of directors of Borrower or other similar governing body cease to own or do not have the unencumbered right to vote in the aggregate at least ninety percent (90%) of such capital stock or other ownership interest of Borrower.
(b) Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrower under this Agreement, any Notes, or any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for reinvestment costs and not as a penalty), and (ii) proceed to exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred and be continuing shall constitute an event exclusive), all of default (“Event of Default”):which are hereby authorized by Borrower:
(i) The Company Borrower shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any all of the actions set forth above in this subsection 4(a)(i)Equipment at a location designated by Lender; and/or to return promptly, at Borrower’s expense, any or all of the Equipment to Lender at such location;
(ii) Any proceeding shall Lender may itself or by its agents enter upon the premises of Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrower any or all of the Equipment, wherever it may be instituted against the Company seeking to adjudicate it a bankrupt or insolventlocated, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an without any court order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orpossession;
(iii) The Company shall fail to pay the Sell, lease or otherwise dispose of any part or all of the Principal when due hereunderEquipment, whether or not in Lender’s possession, at public or private sale with or without notice to Borrower, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Borrower under the Notes and the other Loan Documents, with Borrower remaining liable for any deficiency, or retain any and all of the Equipment;
(biv) If Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrower or to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lender or any affiliate of this Note at the time outstandingLender, and all other amounts payable with respect to which Borrower has an interest, against any obligations of Borrower arising under this Note Agreement, any Notes or any other Loan Document, whether or not Borrower has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lender in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that Borrower shall indemnify, defend and hold Lender harmless for any loss, personal injury (including death), or damage to property, suffered by Lender, its employees or any of its agents in case connection with its entry onto the Principal premises of Borrower or any third party hereunder. Each of the Note becomes due rights and payable by declaration remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or otherwiseany other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, then the Company will pay in cash power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the Holder future exercise of this Noteany such right, the whole amount that then power or remedy. Waiver by Lender of any Event of Default shall have become due and payable on this Note for Principal. In case the Company not be a waiver by Lender of any other or subsequent Events of Default.
(d) Borrower shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or notify Lender in equity for the collection writing of the sums so due and unpaidoccurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may prosecute in any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableevent within ten (10) days thereafter.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Banyan Rail Services Inc.)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company; (“Event b) the failure of Default”):the Company to generally meet its debts as they mature; (c)
(i) the commencement by The Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within forty-five (45) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within forty-five (6045) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding; (d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Company or the Agent, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent's satisfaction for a period of thirty (30) days from the date of such breach; (e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof; (f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Revolving Loan Account on the due date thereof; (g) the Company shall be found by a competent tribunal to have(i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (g) such event or condition (x) remains uncured for a period of thirty (30) days from date of receipt by the Company of written notice or the occurrence thereof and (y) could, in the reasonable opinion of the Agent, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company; (h) without the prior written consent of the Agent and, except as permitted in the Subordination Agreement, the Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt; or (i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that, all loans, advances and extensions of credit provided for in Sections 3 and 5 of this Financing Agreement shall be thereafter in the Agent's or the Required Lenders' sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Lenders' reasonable judgment. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all Obligations shall become immediately due and payable; (b) the Agent may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause "(b)" the Agent has given the Company written notice of the Event of Default, provided further however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c) of this Section 10; and (c) the Agent may immediately terminate this Financing Agreement upon notice to the Company; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by the Agent. The exercise of any option is not exclusive of any other option, which may be exercised at any time by the Agent.
10.3 Immediately upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or the Agent may use, at the Company's expense, such of the Company's personnel, supplies or space at the Company's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate and any such costs shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to this paragraph shall not effect commercial reasonableness of the sale. The Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make it available to the Agent at premises of the Company or elsewhere and to make available to the Agent the premises and facilities of the Company for the purpose of the Agent's taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due, in such order as the Agent may elect, and the Company shall remain liable to the Agent for any deficiencies, and the Agent in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies the Agent and holds the Agent harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on the Agent by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to claims brought by the Company, declare the principal amount Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold the Agent harmless, absent the Agent's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstandingforegoing) have been finally and indefeasibly paid in full. In furtherance thereof the Agent, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgment. Any applicable mortgage(s), deed(s) of trust or assignment(s) issued to the Agent on the Real Estate shall govern the rights and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal remedies of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableAgent thereto.
Appears in 1 contract
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred business of any Borrower (other than via a merger, dissolution or other action permitted hereunder) or the calling of a meeting of the creditors of any Borrower for purposes of compromising the debts and be continuing shall constitute an event obligations of default such Borrowers;
(“Event b) admission in writing of Default”):the failure of any Borrower to generally pay its debts as they mature;
(i) The Company or the commencement by any subsidiary (A) shall institute Borrowers of any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it any Borrowers, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of such a Borrowers, which proceeding shall not have been controverted within thirty (30) days or caseshall not have been dismissed and vacated within sixty (60) days of commencement, or shall file an answer any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Borrowers shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt commencement (x) by any Material Subsidiary or insolventany Borrower of any bankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against any Material Subsidiary or any Borrower, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, which proceeding shall not have been controverted within thirty (30) days and either such proceeding shall not have been dismissed or shall not have been stayed for a period of vacated within sixty (60) days of commencement, or any of the actions sought in any such proceeding shall occur or any such Material Subsidiary shall take action to authorize or effect any of the actions in any such proceeding;
(including, without limitation, the entry d) material breach by any Borrowers of any order for relief against warranty, representation or covenant of: (i) the first sentence of Section 3.3; (ii) Section 3.4; (iii) Section 6.3(a); (iv) Section 7.5 (only as it relates to insurance on the Inventory); (v) Section 7.9; and (vi) Section 7.10(a) or (b);
(e) breach by the Borrowers of any other term or provision of this Financing Agreement (other than the type described in clause (f) immediately below) or any other Loan Document, or the appointment acceleration of amounts in excess of Fifteen Million Dollars ($15,000,000) owing under any other contract(s) to which a receiverBorrower is a party, trusteeprovided that such Default by the Borrowers shall not be deemed to be an Event of Default unless and until such Default shall remain unwaived or unremedied for a period of thirty (30) days from the date of such Default;
(f) except as otherwise provided in the last sentence of Section 8.10, custodian failure of the Borrowers or any one of them to pay any principal when due, or any interest, fees or other similar official Obligations within ten (10) Business Days of the due date thereof;
(g) the Borrowers or any one of them shall (i) engage in any non-exempt "prohibited transaction" as defined in Section 406 of ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in Section 4043(c) of ERISA (other than a reportable event not subject to the provision for it 30-day notice to the PBGC under the regulations issued under Section 4043 of ERISA), (iv) terminate any employee benefit plan subject to Part 3 of Subtitle B of Title I of ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (g) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject any substantial part of its property) shall occurthe Borrowers to any tax, penalty or other liability material to the business, operations or financial condition of any such Borrowers; or
(h) the failure of the Borrowers to deliver any post closing items, if any, as otherwise agreed in writing as set forth in the last paragraph of Section 2.1, pursuant to the terms and conditions of such writing.
10.2 Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders, the Agent shall, declare that: (i) all Obligations shall upon notice (provided, however, that no such notice is required if the Event of Default is the Event of Default listed in Section 10.1(c)) become immediately due and payable; (ii) the Agent may charge the Borrowers the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8.1 of this Financing Agreement provided a) the Agent has given the Borrowers written notice of the Event of Default, provided, however, that no notice is required if the Event of Default is the Event of Default listed in paragraph (c) of Section 10.1 and b) the Borrowers have failed to cure the Event of Default within fifteen (15) days after x) the Agent deposited such notice in the United States mail or has otherwise notified the Parent in writing by personal or private delivery, facsimile or electronic transmission, or y) the occurrence of the Event of Default listed in Section 10.1(c); (iii) the Agent may immediately terminate this Financing Agreement upon notice to the Borrowers, provided, however, that no notice of termination is required if the Event of Default is the Event of Default listed in Section 10.1(c); and (iv) all loans, advances and extensions of credit provided for in this Financing Agreement shall be immediately due and payable and the obligation of the Agent and/or the Lenders to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties shall cease unless and until such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Required Lenders' reasonable judgement. Notwithstanding anything herein contained to the contrary, if the Required Lenders (or all Lenders to the extent required in Section 14.10) waive all Events of Default, then by written notice to the Borrowers, the acceleration of the Obligations will be rescinded and all remedies and actions then being exercised by the Agent shall cease. The Company exercise of any remedy is not exclusive of any other remedy which may be exercised at any time by the Agent.
10.3 Immediately upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or the Agent may use, at the Borrowers' expense, such of the Borrowers' personnel, supplies or space at the Borrowers' places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Borrowers or the Agent, and generally shall fail have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Borrowers or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Borrowers; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to pay take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. Subject to applicable law, the Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Principal when due Collateral, whether in its then condition or after further preparation or processing, in the name of the Borrowers or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as the Agent in its discretion (exercised in good faith) may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate and any such costs shall be deemed an Obligation hereunder;
(b) If an Event . Any action taken by Agent pursuant to this paragraph shall not effect commercial reasonableness of Default described above has occurredthe sale. The Borrowers agree, then at the Holder mayrequest of the Agent, without further notice to assemble the Inventory and Equipment and to make it available to the Company, declare the principal amount of this Note Agent at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal premises of the Note becomes due Borrowers or elsewhere and payable by declaration or otherwise, then the Company will pay in cash to make available to the Holder Agent the premises and facilities of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity Borrowers for the collection purpose of the sums so due Agent's taking possession of, removing or putting the Inventory and unpaidEquipment in saleable form. If notice of intended disposition of any Collateral is required by law, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.it is agreed that ten
Appears in 1 contract
Samples: Financing Agreement (Gart Sports Co)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) The Failure to make any payment hereunder when due or interest thereon within five days of the date when due; or
(ii) Any representation or warranty made by the Company or any subsidiary officer of the Company in the Securities Purchase Agreement, this Note, the Security Instruments, or in any agreement, report, certificate or other document delivered to the Holder pursuant to the Loan Documents shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given to the Company; or
(iii) The Company shall fail to perform or observe any covenant contained in the Securities Purchase Agreement or any other Loan Document and such default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given to the Company; or
(iv) The Company (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth fort above in this subsection 4(a)(i);subsection; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The occurrence of any event of default or other event triggering acceleration of any indebtedness by the Company under any note, agreement or other instrument involving the issuance of indebtedness (but not including any trade payables incurred in the ordinary course of business), whether such indebtedness now exists or may hereafter be created, if, as a result of such event of default or other event, the maturity of such indebtedness has been accelerated or has otherwise become or been declared to be due prior to its stated maturity and the principal amount of such indebtedness which has been accelerated or has otherwise become or been declared to be due exceeds, individually or in the aggregate, One Hundred Thousand Dollars ($100,000); or
(vii) The making or filing of any money judgment, writ or similar process in excess of One Hundred Thousand Dollars ($100,000) against the Company or any of the property or other assets of the Company which shall remain unsatisfied, unvacated, unhanded or unstayed until the date that is the earlier to occur of thirty (30) days after such judgment, writ or similar process is entered and five (5) days prior to the date of any proposed sale thereunder; or
(viii) The levying of any writ of attachment against any property or other assets of the Company not fully covered by insurance in force valued individually or in the aggregate at an amount equal to or greater than One Hundred Thousand Dollars ($100,000) unless the Company posts a bond or obtains other relief for the release of such attachment within thirty (30) days; or
(ix) The suspension of the usual business activities of the Company or the winding up or the complete or partial liquidation of the Company’s business; or
(x) The Company shall fail challenge, or institute or join in any proceedings to pay challenge the validity, binding effect or enforceability of this Note or any part endorsement of this Note or any other obligation to Holder; or
(xi) The Security Agreement or any provision thereof shall cease to be in full force or effect or shall be declared to be null or void or otherwise unenforceable in whole or in part; or Holder shall not have or shall cease to have a valid and perfected security interest in the collateral described in the Security Agreement; or
(xii) The removal of the Principal when due hereunder;Lead Lender Director for any reason without the approval of St. Cloud.
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Holder and the Note shall bear interest until paid at the rate of 15% per annum (the “Default Interest Rate”). If an Event of Default described above has occurredoccurs and is continuing, then Holder may pursue any remedy available at law or in equity or provided for in any Loan Document to collect the payment of all amounts due under the Note or to enforce the performance of any provision of the Note, and all expenses incurred by Holder may, without further notice to in connection with any remedy shall be deemed indebtedness of the Company. For the avoidance of doubt, declare the occurrence of an Event of Default as set forth in Section 6(a)(iv) and Section 6(a)(v) above shall make all sums of principal amount of this Note at the time outstanding, and interest then remaining unpaid and all other amounts payable under this Note to be forthwith hereon due and payable, whereupon all without demand, presentment, notice or protest, all of which hereby are expressly waived, and will permit Holder to exercise any other right available to it at law or in equity, all which rights and powers may be exercised cumulatively. No delay or failure of Holder in the exercise of any right or remedy provided for under this Note or under any of the Loan Documents shall be deemed a waiver of such principal right by Holder. No exercise or partial exercise or waiver of any right or remedy shall be deemed a waiver of any further exercise of such right or remedy or of any other right or remedy that Holder may have under this Note or under any of the Loan Documents. Enforcement of any of Holder’s rights as to any security for the Promissory Note shall not affect Holder’s right to enforce payment of the Promissory Note and all such amounts shall become to recover judgment for any portion thereof remaining unpaid. The rights and be forthwith due remedies set forth in this Note and payablein any of the Loan Documents are cumulative and not exclusive of any other right or remedy that Holder may have.
(c) The Company covenants that In no event shall Holder be entitled to interest exceeding the maximum rate permitted by law or under the applicable regulations promulgated by the United States Small Business Administration (the “SBA”). If any excess interest is provided for or shall be adjudicated to be so provided for in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on or if any payment or other consideration under this Note for Principal. In case or the Securities Purchase Agreement is determined by the SBA to exceed the amount permitted under applicable regulations promulgated by the SBA, then in such event: (i) the provisions of this paragraph shall govern and control; (ii) the Company shall fail forthwith not be obligated to pay the amount of such amount, interest or other payment or consideration to the Holder may commence an action or proceeding at law or extent that it is in equity for the collection excess of the sums so due and unpaidmaximum amount permitted by law, and may prosecute the same shall be construed as a mutual mistake of the parties; and (iii) any such action excess which may have been collected or proceeding attributed shall, at the option of Holder, be subtracted from the then unpaid principal amount hereof or refunded to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCompany.
Appears in 1 contract
Samples: Note and Common Stock Agreement (St Cloud Capital Partners Lp)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of any Company or of any Guarantor or the calling of a meeting of the creditors of any Company or of any Guarantor for purposes of compromising the debts and be continuing shall constitute an event obligations of default any Company or any Guarantor;
(“Event b) the failure of Default”):any Company or of any Guarantor to generally meet its debts as they mature;
(i) The the commencement by any Company or by any Guarantor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law; (ii) the commencement against any Company or any subsidiary (A) shall institute Guarantor of any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceeding under any federal or state law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry by creditors of any order for relief Company or of any Guarantor, provided that such Default shall not be deemed an Event of Default if such proceeding is controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, except in the appointment event that any of a receiver, trustee, custodian the actions sought in any such proceeding shall occur or other similar official for such the any Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Guarantor shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt commencement (x) by any of the Company’s or insolventany Guarantor’s subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against any Company’s or any Guarantor’s subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or any Company’s or any Guarantor’s subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by any Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between such Company or CIT, provided that such Default by such Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT’s satisfaction for a period of ten (10) days after such breach is actually known to the Companies or reasonably should have been known to the Companies;
(e) breach by any Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Companies to pay any of the Obligations, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) each Company shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of CIT, subject such Company to any tax, penalty or other liability material to the business, operations or financial condition of such Company;
(h) without the prior written consent of CIT and, except as permitted herein, any Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt;
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt, including the Indenture and the Senior Subordinated Notes or (y) any other Indebtedness of any Company having a principal amount in excess of $250,000;
(j) if any Guarantor dies or terminates its respective Guaranty or otherwise fails to perform any of the terms of the Guaranty, all prior to termination of this Financing Agreement and payment in full of all Obligations; or
(k) any judgment or judgments aggregating in excess of $100,000.00 or any injunction or attachment is obtained or enforced against the Company or any Guarantor and which remains unstayed for more than ten (10) Business Days.
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in this Financing Agreement shall be thereafter in CIT’s sole discretion and the obligation of CIT to make Revolving Loans shall cease unless such Default is cured to CIT’s satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default: (a) all Obligations shall become immediately due and payable; (b) CIT may charge the Companies the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, and (c) CIT may immediately terminate this Financing Agreement upon notice to the Companies; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by CIT. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
10.3 Immediately upon the occurrence of any Event of Default, CIT may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Companies’ expense, such of the Companies’ personnel, supplies or space at the Companies’ places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Companies or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Companies or CIT; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT’s sole option and discretion, and CIT may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Companies; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. CIT shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Companies or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, CIT shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CIT shall deem appropriate and any such costs shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to this paragraph shall not effect commercial reasonableness of the sale. The Companies agree, at the request of CIT, to assemble the Inventory and Equipment and to make it available to CIT at premises of the Companies or elsewhere and to make available to CIT the premises and facilities of the Companies for the purpose of CIT’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations, whether due or to become due, in such order as CIT may elect, and the Companies shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the Companies or their successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Companies hereby indemnify CIT and holds CIT harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it claims brought by the Companies, the Companies as debtor-in-possession, any secured or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part unsecured creditors of the Principal when due hereunder;
(b) If an Event Companies, any trustee or receiver in bankruptcy, or otherwise), and the Companies hereby agree to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstanding, foregoing) have been finally and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that indefeasibly paid in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalfull. In case the Company shall fail forthwith to pay furtherance thereof CIT, may establish such amount, the Holder reserves for Obligations hereunder (including any contingent Obligations) as it may commence an action or proceeding at law or deem advisable in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableits reasonable business judgement.
Appears in 1 contract
Events of Default and Remedies. (a) 13.1 Any one or more of the following events which events, whether or not any such event shall have occurred and be continuing voluntary or involuntary or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute an event of default (“Event of Default”):Default if:
(ia) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking MMG defaults in the entry payment of any order for relief or monies due hereunder as and when the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing same is due;
(b) MMG defaults in the commencement observance or performance of such case any other provision hereof;
(c) an order is made or proceeding, a resolution is passed or shall consent to a petition is filed for the liquidation or acquiesce in the appointment winding-up of such a receiver, trustee, custodian MMG;
(d) MMG commits an act of bankruptcy or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make makes a general assignment for the benefit of creditors; its creditors or otherwise acknowledges its insolvency;
(De) shall take execution, sequestration, extent or other process of any action court becomes enforceable against MMG or a distress or analogous process is levied upon the Property or any part thereof unless the process is in good faith disputed by MMG and MMG gives security to authorize pay the full amount claimed to the satisfaction of the Lenders;
(f) MMG permits any sum which is not disputed to be due by MMG and which forms or effect is capable of forming a charge upon any of the actions set forth above in this subsection 4(a)(i)Property to remain unpaid after proceedings have been taken to enforce the same;
(iig) Any proceeding shall be instituted against the Company seeking MMG ceases or demonstrates an intention to adjudicate it cease to carry on its business;
(h) a bankrupt receiver or insolvent, receiver-manager or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or receiver and manager is appointed for any substantial part of its propertyProperty;
(i) MMG makes default in the due payment, and either such proceeding shall not have been dismissed performance or shall not have been stayed for a period of sixty (60) days observance, in whole or any of the actions sought in such proceeding (includingpart, without limitation, the entry of any order for relief against it debt, liability or obligation of MMG to the appointment of a receiverLenders, trustee, custodian whether secured hereby or other similar official for it or for any substantial part of its property) shall occurotherwise; or
(iiij) The Company MMG makes default in the due payment, performance or observance, in whole or in part, of any charge or encumbrance upon the Property.
13.2 Upon the occurrence of any Event of Default and at any time thereafter, provided that MMG has not by then remedied such Event of Default, the Lenders may, in their discretion, by notice to MMG, declare this Agreement to be in default. At any time thereafter, while MMG shall fail not have remedied such Event of Default, the Lenders, in their discretion, may:
(a) declare the Bridge Loan and other monies owing (the “Debt”) by MMG to pay the any part of the Principal when Lenders to be immediately due hereunderand payable;
(b) If an Event convert the Debt into common shares of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.MMG as provided in paragraph 11.2 hereof;
(c) The Company covenants that convert the Debt into any successor company of MMG; and
(d) demand payment from MMG and exercise any or all of its remedies under this Agreement.
13.3 No remedy conferred on the Lenders hereby is intended to be exclusive. Each and every remedy shall be cumulative and shall be in case the Principal of the Note becomes due and payable by declaration addition to every other remedy given hereunder or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action now or proceeding hereafter existing at law or in equity for or by statute or otherwise. The exercise or commencement of exercise by the collection Lenders of any one or more of such remedies shall not preclude the sums so due and unpaid, and may prosecute simultaneous or later exercise by the Lenders of any or all other such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableremedies.
Appears in 1 contract
Samples: Bridge Loan and Representation Agreement (Mega Media Group Inc)
Events of Default and Remedies. (a) Any one or more For purposes of the following events which this Agreement it shall have occurred and be continuing shall constitute an "Event of Default" if any event of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts occur under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;Notes.
(b) If an Event of Default described above has occurredshall have occurred and be continuing, then the Holder mayPledgee shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this Agreement, any Control Instructions or applicable law) for the protection and enforcement of its rights in respect of the Collateral, and the Pledgee shall be entitled, without further notice limitation, to exercise the following rights and remedies, which the Pledgor hereby agrees to be commercially reasonable:
(i) to transfer all or any part of the Physical Securities, Brokerage Accounts or other Collateral into the Pledgee's name or the name of its nominee or nominees;
(ii) to exercise all voting rights attaching to all or any part of the Collateral (whether or not transferred into the name of the Pledgee) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy and attorney-in-fact of the Pledgor, with full power of substitution to do so);
(iii) with respect to the CompanyBrokerage Account(s), declare to otherwise exercise full dominion and control thereof, to the principal amount exclusion of this Note Pledgor and other persons, including the right to liquidate and receive the proceeds of such liquidation;
(iv) with respect to securities or any other property, included in the Collateral (including any such securities held in any Brokerage Account), to take and apply the same as payment on account of the Obligations, provided that in the event of such application the outstanding Obligations shall be reduced based on the fair value thereof as determined in good faith by the Board of Directors of Pledgee; and
(v) at any time or from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral (including Collateral held in any Brokerage Account), or any interest therein, at any public or private sale, without demand of performance, advertisement or notice of intention to sell or of the time outstandingor place of sale or adjournment thereof or to redeem or otherwise (all of which are hereby waived by the Pledgor), for cash, on credit or for other property, for immediate or future delivery without any assumption of credit risk, and all other amounts payable under this Note for such price or prices and on such terms as the Pledgee in its absolute discretion may determine, provided that at least 10 days' notice of the time and place of any such sale shall be given to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payablethe Pledgor.
(c) The Company covenants that in case Pledgor hereby waives and releases to the Principal fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling the Collateral and any other security for the Obligations or otherwise. At any such sale, unless prohibited by applicable law, the Pledgee may bid for and purchase all or any part of the Note becomes due and payable by declaration Collateral so sold free from any such right or otherwise, then the Company will pay in cash equity of redemption. The Pledgee shall not be liable for failure to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action collect or proceeding at law realize upon any or in equity for the collection all of the sums Collateral or for any delay in so due and unpaid, and may prosecute doing nor shall it be under any such obligation to take any action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablewhatsoever with regard thereto.
Appears in 1 contract
Events of Default and Remedies. (a) Any 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events which (herein called "Events of Default") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in 11 11 compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the time of such notice, that is to say:
(a) if default shall constitute an event be made in the due and punctual payment of the principal of this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(“Event c) if default shall be made in the performance or observance of Default”):any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; or if the Maker or any Subsidiary shall default in the performance or 12 12 observance of any other agreement, term or condition contained in such obligation or in any agreement under which any such obligation is created, if the effect of any such default is to cause or permit the holder or holders of such obligations (or a trustee on behalf of such holder or holders) to cause such obligation to become due prior to the date of its stated maturity, unless such holder or holders or trustee shall have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a default thereunder;
(f) if the Maker or any Subsidiary shall:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking admit in writing its inability to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or pay its debts under any law relating generally as they become due;
(ii) file a petition in bankruptcy or a petition to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry take advantage of any order insolvency act;
(iii) make an assignment for relief or the benefit of creditors;
(iv) consent to the appointment of a receiver, trustee, custodian receiver of itself or other similar official for such of the Company whole or any subsidiary substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or for answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or 13 13 statute of the United States of America or any State, district or territory thereof;
(g) if a court of competent jurisdiction shall enter an order, judgment, or decree appointing, without the consent of the Maker or any Subsidiary, a receiver of the Maker or any Subsidiary or of the whole or any substantial part of its property, or shall consent to the commencement approving a petition filed against it of such a proceeding seeking reorganization or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any arrangement of the actions Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set forth above in this subsection 4(a)(i)aside or stayed within 60 days from the date of entry thereof;
(iih) Any proceeding shall be instituted against if, under the Company seeking to adjudicate it a bankrupt provisions of any other law for the relief or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief aid of debtors, any court of competent jurisdiction shall assume custody or seeking control of the entry Maker or any Subsidiary or of an order for relief the whole or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, property and either such proceeding custody or control shall not have been dismissed be terminated or shall not have been stayed for a period within 60 days from the date of sixty (60) days assumption of such custody or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurcontrol; or
(iiii) The Company if final judgment for the payment of money in excess of $50,000 shall fail be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide 14 14 for its discharge in accordance with its terms, or shall not procure a stay of execution thereon within 60 days from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, appeal therefrom, and cause the execution thereof to pay the be stayed during such appeal.
8.2. In case any part one or more of the Principal when due hereunder;
(b) If an Event Events of Default described above has occurredspecified in Section 8.1 hereof shall have occurred and be continuing, then the Holder may, without further notice to the Company, declare the principal amount holder of this Note may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the time outstanding, and all other amounts payable under specific performance of any covenant or agreement contained in this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that or in case the Principal aid of the exercise of any power granted in this Note, or the holder of this Note becomes may proceed to enforce the payment of all sums due and payable by declaration upon this Note or otherwise, then to enforce any other legal or equitable right of the Company will pay in cash to the Holder holder of this Note, .
8.3. No remedy herein conferred upon the whole amount that then holder hereof is intended to be exclusive of any other remedy and each and every such remedy shall have become due be cumulative and payable on this Note for Principal. In case the Company shall fail forthwith be in addition to pay such amount, the Holder may commence an action every other remedy given hereunder or proceeding now or hereafter existing at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment by statute or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableotherwise.
Appears in 1 contract
Samples: Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Hospital fails to pay any installment of monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Hospital.
(b) Hospital attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Hospital shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Hospital hereunder and such failure shall continue uncured for twenty (A20) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolventHospital by GKF;
(d) Hospital ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statue, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Hospital seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Hospital's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay not be vacated. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyHospital, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Hospital and Hospital hereby agrees to return the Equipment to GKF at Hospital's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Hospital to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Hospital shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payable.in default. In the event that Hospital shall have paid to GKF the liquidated damages referred to in (ii) above, GKF hereby agrees to pay to Hospital promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF, said amount never to exceed the amount of the liquidated damages paid by Hospital). Hospital agrees that GKF shall have no obligation to sell the Equipment. Hospital shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Hospital hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law. 11 Hoag Xxxorial Hospital Presbyterian and GK Financing, LLC Page 11 Lease Agreement October 29, 1996
Appears in 1 contract
Samples: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. (a) Any In case one or more of the following events which ("Events of Default") shall have occurred and be continuing shall constitute an event of default (“Event of Default”):continuing:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing default in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any payment of the actions set forth above in principal of or interest on this subsection 4(a)(i);Note as and when the same shall become due and payable, at maturity, upon any redemption, by declaration or otherwise; or
(ii) Any proceeding shall be instituted against failure on the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertythe Issuer duly to observe or perform (i) any other of the covenants or agreements on the part of the Issuer contained herein (other than those covered by clause (i), above;) or (ii) any material covenants or agreements on the part of the Issuer contained in any other agreement between the Issuer and the Noteholder, including, but not limited to, that certain Wind-Up Agreement of even date herewith, in either such proceeding shall not have been dismissed or shall not have been stayed case for a period of sixty (60) 30 days after the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or any of certified mail, return receipt requested, to the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurIssuer; or
(iii) The Company shall fail to pay the prepayment of any part Subordinated Note (as hereinafter defined) in violation of the Principal when due hereunder;provisions of Section 6 of this Note; or
(biv) If any event or condition shall occur which results in the acceleration of the maturity of any Debt or enables or, with the giving of notice or lapse of time or both, would enable the holder of such Debt or any Person acting on such holder's behalf to accelerate the maturity thereof; or
(v) the Issuer pursuant to or within the meaning of any bankruptcy or insolvency law: (A) commences a voluntary case or proceeding; (B) consents to the entry of an then, subject to the last sentence of this Section 2, in each case where an Event of Default described above has occurredspecified in Section 2(c)(i) through 2(c)(iv) occurs, then the Holder mayHolder, without further by notice in writing to the Company, Issuer (the "Acceleration Notice") may declare the principal amount of this Note at the time outstandinghereunder to be due and payable immediately, and all other amounts payable under this Note to be forthwith upon any such declaration the same shall become immediately due and payable; provided, whereupon such however, that if an Event of Default specified in Section 2(c)(v) occurs, the principal and all such amounts hereunder shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes immediately due and payable by without any declaration or otherwise, then other act on the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection part of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableHolder.
Appears in 1 contract
Samples: Wind Up Agreement (Oakhurst Co Inc)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Debtor or the calling of a meeting of the creditors of the Debtor for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Debtor;
(“Event b) the failure of Default”):the Debtor to generally meet its debts as they mature;
(i) The Company or the commencement by the Debtor of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Debtor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Debtor, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within ninety (90) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Debtor shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Debtor's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Debtor's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within ninety (6090) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Debtor's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(includingd) breach by the Debtor of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Debtor or CIT, provided that such Default by the Debtor of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT's satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Debtor of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Debtor to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Debtor shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (g) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of CIT, subject the Debtor to any tax, penalty or other liability material to the business, operations or financial condition of the Debtor;
(h) without limitationthe prior written consent of CIT and, except as permitted in the Subordination Agreement, the entry Debtor shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt;
(i) the occurrence of any order for relief against it default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the appointment Debtor having a principal amount in excess of $50,000;
(j) at least two of the three Principals ceases (other than as a receiver, trustee, custodian result of death) to be actively engaged in the management of the Debtor and such individual or other similar official for it or for any substantial part individuals shall not have been replaced with persons having comparable experience and expertise (as reasonably determined by CIT) within 120 days of its property) shall occursuch individual ceasing to actively be engaged in the Debtor's management; or
(iiik) The Company the Shareholders listed in Schedule 6 attached hereto shall fail cease to pay be the any part beneficial and legal owner of at least fifty percent (50%) of the Principal when issued and outstanding capital stock of Guarantor unless due hereunder;
(b) If to a public offering of such stock or unless due to a private sale of such stock pursuant to an Event of Default described above has occurredequity investment approved by CIT, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to which approval shall not be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableunreasonably withheld or delayed.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. Any one of the following occurrences shall constitute an "event of default" under this Note:
(a) Any one The failure by Maker to make any payment of principal or more interest upon this Note as and when the same becomes due and payable in accordance with the terms hereof, and the continuation of such failure for five (5) days after written notice thereof to Maker from JMB;
(b) The occurrence of any default under this Note other than as described in the following events which preceding clause (a), and the continuance of such failure for thirty (30) days after written notice thereof to Maker from JMB; provided that if at the end of such 30 day period Maker, in JMB's sole judgment, is proceeding with due diligence to cure such default, then there shall have occurred and not be continuing shall constitute an event of default (“Event for an additional period of Default”):the shorter of 60 days or the period during which, in JMB's sole judgment, Maker continues to proceed with due diligence to cure such default;
(ic) The Company occurrence of any Default (as defined in the Third Amended and Restated Security Agreement) under the Priority Security Agreement;
(d) Maker, any general partner of Maker (or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventconstituent general partner thereof), or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief any entity whose equity constitutes collateral under a Security Agreement (a "Collateral Entity") becomes insolvent or composition of it or its debts under any law relating generally fails to bankruptcy, insolvency or reorganization or relief of debtorspay, or seeking admits in writing its inability to pay, debts as they become due; or Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity applies for, consents to, or acquiesces in the entry appointment of, a trustee, receiver or other custodian for itself or of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Maker, any general partner of Maker (D) shall take or any constituent general partner thereof), or any Collateral Entity, or for a substantial part of the property of any of them and is not discharged within 30 days; or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced in respect of Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, and if such case or proceeding is not commenced by Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, it is consented to or acquiesced in by Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, or remains for 60 days undismissed; or Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, takes any action to authorize authorize, or effect in furtherance of, any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurforegoing; or
(iiie) The Company shall fail Any representation, warranty or certification made by Maker to pay JMB or any subsequent holder hereof in connection with the Loan, this Note, any part Security Agreement, or any other document executed in connection herewith proves to be or to have been false in any material respect at any time. For purposes of the Principal when due hereunder;
foregoing clauses (bc) If and (e) of this Section 9, with respect to any event or occurrence which constitutes an Event event of Default described above has occurreddefault hereunder solely by reason of its constituting a default (as distinguished from an "event of default") under a document or instrument other than this Note, then the Holder may, without further notice to the Companyextent (if any) that such other document or instrument provides a grace or cure period with respect to such default, declare the same grace or cure period, and only such period, shall apply with respect to this Note. Upon the occurrence of any event of default hereunder: (i) the entire unpaid principal amount of balance of, and any unpaid interest then accrued on, and any other amounts owing under or evidenced by this Note shall, at the time outstandingoption of the holder hereof and without notice or demand of any kind to Maker or any other person, and all other amounts payable under this Note to be forthwith immediately become due and payable, whereupon such principal ; and (ii) the holder hereof shall have and may exercise any and all such amounts shall become rights and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding remedies available at law or in equity for the collection and also any and all rights and remedies provided in Security Agreements or in any other instrument securing this Note. The remedies of the sums so due holder hereof, as provided herein or in the Security Agreements or any other instrument securing this Note, shall be cumulative and unpaidconcurrent, and may prosecute be pursued singularly, successively or together, at the sole discretion of the holder hereof,' and may be exercised as often as occasion therefor shall arise. No act of omission or commission of the holder, including specifically any such action failure to exercise any right, remedy or proceeding to judgment or final decree against Company or other obligor upon this Noterecourse, wherever situated, the monies adjudicated or decreed shall be deemed to be payablea waiver or release of the same, such waiver or release to be effected only through a written document executed by the holder and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.
Appears in 1 contract
Samples: Note Split Agreement (JMB 245 Park Avenue Associates LTD)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company;
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and the proceeding dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall to the extent it may reasonably be instituted against expected to result in a material change in the Company seeking to adjudicate it a bankrupt or insolventfinancial condition of the Company, the commencement (x) by the Company's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within fifteen (15) days and dismissed or shall not have been stayed for a period of sixty vacated within forty-five (6045) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(includingd) breach by the Company, in any material respect, of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph [e] below) or in any other 41 42 written agreement between the Company or CIT, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT's reasonable satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company, in any material respect, of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and Paragraph 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could reasonably be expected, in the opinion of CIT, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) without limitationthe prior written consent of CIT and, except as permitted in the Subordination Agreement, the entry of any order for relief against it Company shall amend or modify the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurSubordination Debt; or
(iiii) The Company shall fail the occurrence of any default or event of default (after giving effect to pay the any part applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Principal when Company having a principal amount in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in CIT's sole discretion and the obligation of CIT to make Revolving Loans, shall cease unless such Default is cured to CIT reasonable satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default:
(a) all Obligations shall become immediately due hereunder;
and payable; (b) If an CIT may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause "(b)" CIT has given the Company written notice of the Event of Default; provided, however, that no notice is required if the Event of Default described above has occurred, then is the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that Event listed in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.Paragraph 10.1
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred and occur, each such event shall be continuing shall constitute an event of default (“Event of Default”)::
(a) the District shall fail to pay, or cause to be paid, as and when due any Obligation; or
(b) the District shall fail to pay, or cause to be paid, when due any Parity Debt; or
(c) any representation or warranty made by or on behalf of the District to the Bank in this Agreement, a Related Document or in any certificate or statement delivered hereunder shall be incorrect or untrue in any material respect when made or deemed to have been made; or
(d) any “event of default” under any Related Document which is not cured within any applicable cure period shall occur; or
(e) default in the due observance or performance of any covenant set forth in Sections 6.01(e), 6.01(f), 6.01(g), 6.01(i)(ii), 6.01(j), 6.01(m), 6.01(n), 6.01(p), 6.01(q) or
7.01 hereof; or
(f) default in the due observance or performance of any other term, covenant or agreement set forth in this Agreement or any other Related Document and the continuance of such default for fifteen (15) days; or
(g) (i) any provision of this Agreement or any material provision of any of the Related Documents shall cease to be valid and binding, or (ii) a senior officer of the District shall, in writing, (A) claim that any material provision of this Agreement or any other Related Document is not valid or binding on the District or (B) repudiate its obligations under this Agreement or any other Related Document or its obligation to pay or repay any Parity Debt; or
(h) an Event of Insolvency shall have occurred with respect to the District; or
(i) The Company dissolution or termination of the existence of the District; or
(j) the District or any subsidiary (A) governmental agency or authority with jurisdiction over the District shall institute initiate any proceeding or voluntary case seeking legal proceedings to adjudicate it bankrupt or insolventseek an adjudication that this Agreement, the Bonds, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it any Related Document or its debts under obligation to pay any law relating to bankruptcy, insolvency Parity Debt is not valid or reorganization or relief not binding on the District; or
(k) any court of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian competent jurisdiction or other similar official for such governmental entity with jurisdiction to rule on the Company validity of this Agreement, the Bonds or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in Related Documents, shall announce, find or rule that this subsection 4(a)(i);Agreement, the Bonds or any of the Related Documents is not valid or not binding on the District; or
(iil) Any proceeding shall be instituted one or more final, nonappealable judgments against the Company seeking to adjudicate it a bankrupt or insolventDistrict, or seeking dissolutionattachments against the property of the District, liquidationthe operation or result of which, winding upindividually or in the aggregate, reorganizationequal or exceed $10,000,000 shall remain unpaid, arrangementunstayed, adjustmentdischarged, protection, relief of debtors, unbonded or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed undismissed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurdays; or
(m) (i) one hundred twenty (120) days after the long-term unenhanced debt rating assigned to the Bonds or any Parity Debt shall be reduced to or below “Baa2” by Moody’s or to or below “BBB” by S&P, (ii) the long-term unenhanced ratings assigned to the Bonds or any Parity Debt shall be withdrawn, suspended or reduced below “Baa3” by Moody’s or “BBB-” by S&P, or (iii) The Company no Parity Debt shall have a long-term unenhanced rating from S&P or Moody’s; or
(n) there shall be appointed or designated with respect to the District, an entity such as an organization, board, commission, authority, agency or body to monitor or declare a financial emergency or similar state of financial distress with respect to it or there shall be declared by it or by any legislative or regulatory body with competent jurisdiction over it, the existence of a state of financial emergency or similar state of financial distress in respect of it; or
(i) default under any mortgage, agreement or other instrument under or pursuant to which Debt which is payable, in whole or in part, as a general obligation of the District is incurred or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto, or (ii) the District shall fail to pay the perform any part other agreement, term or condition contained in any agreement under which any such obligation is created or secured which results in such Debt becoming, or being capable of the Principal when due hereunder;
(b) If an Event of Default described above has occurredbecoming, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith immediately due and payable, whereupon or, with respect to any Debt that is a Swap Contract, which results in such principal and all such amounts shall become and be forthwith due and payable.Swap Contract being terminated early or being capable of being terminated early; or
(cp) The Company covenants that Apportionment Revenues in case any Fiscal Year (as reflected in the Principal District’s audited financial statements) shall be at least thirty percent (30%) less than the average Apportionment Revenues received by the District from the State in the prior two Fiscal Years (as reflected in the District’s audited financial statements); or
(i) (A) any college operated by the District shall lose its accreditation from the Accrediting Commission for Community and Junior Colleges, Western Association of Schools and Colleges (the Note becomes due “ACCJC”) or any other accrediting commission, organization or entity and payable (B) the Apportionment Revenues received by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity District for the collection first fiscal quarter ending after the date which is six months after such loss of accreditation is at least thirty percent (30%) less than the sums so due Apportionment Revenues received by the District for the same fiscal quarter in the prior Fiscal Year, or (ii) any college operated by the District shall be placed on “show cause” (or an equivalent) status by the ACCJC or any other accrediting commission, organization or entity and unpaid, and may prosecute any shall remain in such action status for two (2) years or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablelonger.
Appears in 1 contract
Samples: Reimbursement Agreement
Events of Default and Remedies. (a) Any Event of Default", wherever used herein, means any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):events:
(i) The the Company shall fail to observe or perform any material covenant, agreement or warranty contained in this Series A Preferred Stock Certificate of Designation, and such failure shall not have been remedied within twenty (20) Business Days after the date on which written notice of such failure shall have been given;
(ii) the occurrence of any event or breach or default of a material nature by the Company under the Purchase Agreement or any other Transaction Document (as defined in the Purchase Agreement) and such failure or breach shall not have been remedied within the applicable cure period provided for therein, if any;
(iii) the Company or any subsidiary (A) of its subsidiaries shall institute any proceeding or commence a voluntary case seeking under the United States Bankruptcy Code as now or hereafter in effect or any successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the Company under the Bankruptcy Code and the Company fails to adjudicate it bankrupt pursue dismissal of the case within sixty (60) days after commencement of the case; or insolvent, or seeking dissolution, liquidation, winding up, the Company commences any other proceeding under any reorganization, arrangement, adjustmentadjustment of debt, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, dissolution, insolvency or seeking the entry liquidation or similar law of any order for relief jurisdiction whether now or the appointment of a receiver, trustee, custodian or other similar official for such hereafter in effect relating to the Company or there is commenced against the Company any subsidiary such proceeding and the Company fails to pursue dismissal of the case within sixty (60) days after commencement of the case; or the Company suffers any appointment of any custodian or the like for it or any substantial part of its property, property and the Company fails to pursue dismissal of the custodian within sixty (60) days after the appointment; or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make Company makes a general assignment for the benefit of creditors; or (D) shall take any corporate or other action to authorize or effect is taken by the Company for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i)foregoing;
(iv) trading in the common stock of the Company shall have been suspended, delisted, or otherwise ceased by the Securities and Exchange Commission or the NASD or other exchange or the Nasdaq (whether the National Market or otherwise), and trading is not reinstated within twenty (20) Trading Days, except for (i) any suspension of trading of limited duration solely to permit dissemination of material information regarding the Company, and trading is reinstated promptly after such dissemination and (ii) Any proceeding shall be instituted against any general suspension of trading for all companies trading on such exchange or market or OTCBB;
(v) the Company seeking to adjudicate it shall issue a bankrupt or insolventpress release, or seeking dissolutionotherwise make publicly known, liquidationthat it is not honoring properly executed Notice of Conversions for any reason whatsoever, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking unless the entry of an order for relief Company is disputing in good faith the Conversion Price or the appointment of a receiver, trustee, custodian or other similar official for due compliance by the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any Holder of the actions sought in such proceeding (including, without limitation, terms and conditions for conversion of the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurSeries A Preferred Stock; or
(iiivi) The the Company shall fail issue or enter into an agreement to pay issue any equity or equity equivalent security with a floating conversion price substantially similar to the any part of the Principal when due hereunder;Series A Preferred Stock.
(b) If an any Event of Default described above has occurredoccurs and continues, beyond any cure period, if any, then the so long as such Event of Default shall then be continuing, any Holder may, without further by notice to the Company, declare Company demand redemption of the principal amount Shares of this Note Series A Preferred Stock at the time outstandingRedemption Price (as defined herein), and such Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other amounts payable remedies available to it under this Note applicable law. Such declaration may be rescinded and annulled by such Holder at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. This shall include, but not be forthwith due limited to the right to temporary, preliminary and payable, whereupon such principal and all such amounts shall become and be forthwith due and payablepermanent injunctive relief without the requirement of posting any bond or undertaking.
(c) Such Holder may thereupon proceed to protect and enforce its rights either by suit in equity, or by action at law, or by other appropriate proceedings whether for the specific performance (to the extent permitted by law) of any covenant or agreement contained in this Series A Preferred Stock Certificate of Designation or in aid of the exercise of any power granted in this Series A Preferred Stock Certificate of Designation, and proceed to enforce the redemption of any of the Series A Preferred Stock held by it, and to enforce any other legal or equitable right of such Holder.
(d) As a non-exclusive remedy, in the Event of a Default, the Holder can convert the outstanding shares of Series A Preferred Stock at the lesser of the Fixed Conversion Price or the Floating Conversion Price upon giving a Notice of Conversion to the Company. The Company covenants that in case shall not have the Principal right to object to the conversion, except with respect to the calculation of the Note becomes due applicable Conversion Price.
(e) To effectuate the terms and payable by declaration or otherwise, then the Company will pay in cash to the Holder provisions of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amountCertificate of Designation of Series A Preferred Stock, the Holder may commence an action or proceeding at law or send notice of any default to the Attorney-in-Fact (as defined in equity for the collection Purchase Agreement) and send a copy of such notice to the Company and its counsel, simultaneously, and request the Attorney-in-Fact, to comply with the terms of this Certificate of Designation of Series A Preferred Stock and the Purchase Agreement and all agreements entered into pursuant to the Purchase Agreement on behalf of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCompany.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Aberdene Mines LTD)
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred and occur, each such event shall be continuing shall constitute an event of default (“Event of Default”)::
(a) the City shall fail to pay (i) The Company any principal of or interest on any Drawing, any Liquidity Advance or Bank Bond as and when due hereunder, (ii) any principal of or interest on any Bonds for any reason other than the failure of the Bank to honor a properly presented and conforming Drawing under the Letter of Credit as and when due or (iii) any other Obligations (other than Reimbursement Obligations) within five (5) calendar days of receipt by the City of an invoice from the Bank therefor; or
(b) any material representation or warranty made by the City or the Authority in this Agreement (or incorporated herein by reference) or in any of the other Related Documents or in any certificate, document, instrument, opinion or financial or other statement contemplated by or made or delivered pursuant to or in connection with this Agreement or with any of the other Related Documents, shall prove to have been incorrect, incomplete or misleading in any material respect when made;
(c) any “event of default” shall have occurred under any of the Related Documents (as defined respectively therein), including, without limitation the Indenture;
(d) default in the due observance or performance of any covenant set forth in Sections 6.04, 6.05, 6.06, 6.08, 6.12, 6.18, 6.20, 6.22 or Article VII hereof;
(e) default in the due observance or performance of any other term, covenant or agreement set forth in this Agreement and the continuance of such default for 30 days thereafter;
(f) any material provision of this Agreement or any subsidiary of the Related Documents shall cease to be valid and binding, or the City shall contest any such provision, or the City or any agent or trustee on its behalf shall deny that it has any or further liability under this Agreement or any of the Related Documents to which it is a party;
(Ag) the City shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding or voluntary case seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, liquidation, reorganization, arrangement, adjustmentmarshalling of assets, protection, relief adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any corporate action in furtherance of any matter described in parts (i) through (v) above, or seeking the entry of (vii) fail to contest in good faith any order for relief appointment or the appointment of proceeding described in Section 8.01(h) hereof;
(h) a custodian, receiver, trustee, custodian examiner, liquidator or other similar official shall be appointed for such the Company City or any subsidiary or for any substantial part of any of its propertyrespective Property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer described in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (BSection 8.01(g)(v) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt City and such appointment continues undischarged or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed continues undismissed or shall not have been stayed unstayed for a period of sixty 30 or more days;
(60i) days a default shall occur under any evidence of Indebtedness secured by or payable from the Net System Revenues on a basis that is senior to or on parity with the Installment Payments and the Reimbursement Obligations due hereunder issued, assumed, or guaranteed by the City or under any indenture, agreement or other instrument under which the same may be issued and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated); or any Indebtedness secured by or payable from the Net System Revenues on a basis that is senior to or on parity with the Installment Payments and the Reimbursement Obligations due hereunder shall not be paid when and as due (whether by lapse of time, acceleration or otherwise);
(j) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of $5,000,000 shall be entered or filed against the City or against any of its Property and payable by the Net System Revenues (and not fully covered by insurance) and remain unvacated, unsatisfied, unbonded or unstayed for a period of 30 days;
(k) (i) any of Fitch, Moody’s or S&P shall downgrade their respective ratings of any long-term unenhanced indebtedness of the actions sought in such proceeding City secured by the Net System Revenues that ranks on a parity with the Installments Payments to below “BBB-” (includingor its equivalent) by Fitch or “BBB-” (or its equivalent) by S&P or “Baa3” (or its equivalent) by Moody’s or (ii) any of Fitch, without limitationMoody’s, or S&P shall suspend or withdraw their respective ratings of any long-term, unenhanced Indebtedness of the City secured by the Net System Revenues that ranks on a parity with the Installments Payments for credit-related reasons;
(l) any pledge or security interest created by the Indenture, the entry of Installment Purchase Contract or this Agreement to secure any order for relief against it amount due under any Bonds or this Agreement shall fail to be fully enforceable or fail to have the appointment priority required under the Indenture, the Installment Purchase Contract or this Agreement, in either case, by reason of a receiverfinal, trustee, custodian or other similar official for it or for any substantial part non-appealable judgment of its property) shall occura court of competent jurisdiction; or
(iiim) The Company shall fail to pay the a debt moratorium, debt restructuring, debt adjustment or comparable restriction is imposed on any part Indebtedness of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableCity secured by Net System Revenues by any Governmental Authority with appropriate jurisdiction.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Reimbursement Agreement
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) Default in the payment of the principal or accrued interest on this Note or upon any other indebtedness of the Company after the date hereof that is greater than $100,000, as and when the same shall become due, whether by default or otherwise, which Default shall have continued for a period of five (5) business days; or
(ii) Any knowing representation or warranty made by the Company or any officer of the Company in the Note, or in any agreement, report, certificate or other document delivered to the Seller pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given by the Seller; or
(iii) The Company shall fail to perform or observe any material affirmative covenant contained in Section 4 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied thirty (30) days after written notice thereof shall have been given by the Seller; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its material debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its material debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5(a)(iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of such entry.
(vii) The issuance of an SEC stop trade order or an order suspending trading of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading for longer than fifteen (15) trading days.
(viii) The Company shall fail encumber or hypothecate the collateral subject to pay the Security Agreement to any part party;
(ix) A default by the Company of a material term, covenant, warranty or undertaking of any other agreement to which the Principal when due hereunder;Company and Seller are parties, or the occurrence of an event of default under any such other agreement; or
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Seller and the Note shall bear interest until paid at the rate of 12% per annum or such amount as shall be allowed by law (the “Default Interest Rate”). If an Event of Default described above has occurredoccurs and is continuing, then Seller may pursue any available remedy to collect the Holder may, without further notice payment of all amounts due under the Note or to enforce the Company, declare performance of any provision of the principal amount Note. No waiver of this any default under the Note at the time outstandingshall be construed as a waiver of any subsequent default, and all other amounts payable under this Note the failure to be forthwith due and payable, whereupon exercise any right or remedy thereunder shall not waive the right to exercise such principal and all such amounts shall become and be forthwith due and payableright or remedy thereafter.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder Seller of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees of the Seller's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder Seller may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The Company agrees that it shall give notice to the Seller at its registered address by facsimile, confirmed by certified mail, of the occurrence of any Event of Default within twenty (20) days after such Event of Default shall have occurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pacificap Entertainment Holdings Inc)
Events of Default and Remedies. 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred business of the Borrower or the calling of a meeting of the creditors of the Borrower for purposes of compromising the debts and be continuing shall constitute an event obligations of default (“Event of Default”):the Borrower;
(ib) The Company the Borrower shall generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or the Borrower shall commence any subsidiary (A) shall institute any case, proceeding or voluntary case other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protectionliquidation, relief dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or insolvency, reorganization or relief of debtors, debtors or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property or shall file an answer or other pleading in any such case, proceeding or other action admitting the material allegations of any petition, complaint or similar pleading filed;
(c) any involuntary case, proceeding or other action against the Borrower shall be commenced seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (i) results in the entry of any order for relief against it or (ii) shall occur; or
remain undismissed for a period of sixty (iii60) The Company shall fail to pay the any part of the Principal when due hereunderdays;
(bd) If an Event of Default described above has occurred, then the Holder mayany representation or warranty contained herein shall prove to have been false in any material respect when made (other than those referred to in sub-paragraph (f) below) or in any other written agreement including, without further notice to the Companylimitation, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.Loan
Appears in 1 contract
Samples: Financing and Security Agreement (Devlieg Bullard Inc)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Lessee fails to pay an installment of rent on or more before the date when the same becomes due and payable and such failure continues for a period of ten (10) days;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Lessee shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Lessee hereunder and such failure shall continue uncured for thirty (A30) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief Lessee by Lessor or the appointment of then assignee hereof;
(d) Lessee ceases doing business as a receivergoing concern, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any pay its debts as they become due, files a voluntary petition of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsthe petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either or if it or its shareholders shall take any action looking to its dissolution or liquidation;
(e) Within thirty (30) days after the commencement of any proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding proceedings shall not have been dismissed dismissed, or shall not have been stayed for a period of sixty if within thirty (6030) days after the appointment without Lessee's consent or any of the actions sought in such proceeding (including, without limitation, the entry acquiescence of any order for relief against trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereundernot be vacated;
(bf) If Lessee defaults in the payment of any monetary obligation in excess of $25,000 with respect to a loan agreement or other indebtedness involving a total outstanding obligation in excess of $1,000,000 at the time of such default, and such default is not waived within fifteen days of the occurrence thereof, or within fifteen days after the application of any applicable grace or cure period, whichever is longer;
(g) Intentionally deleted.
(h) Lessee sells all or substantially all of its assets or consolidates with or merges into any other entity. Upon the occurrence of an Event of Default described above has occurredDefault, then Lessor may at its option do any one or more of the Holder may, without further following: (i) by notice to the CompanyLessee terminate this Lease as to any or all Equipment Schedules; (ii) whether or not this Lease is terminated as to any or all Equipment Schedules, declare the principal amount take possession on not less than five (5) days' written notice of this Note at the time outstanding, and any or all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Equipment listed on any or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteall Equipment Schedules, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee and Lessee hereby agrees, to return said Equipment to Lessor as provided in this Lease; (iii) recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, all past due amounts as well as an amount equal to the present value of all monies adjudicated or decreed to be paid by Lessee during the remaining Initial Term or any successive period then in effect, calculated by discounting at the rate of nine percent (10%) per annum compounded monthly, which payment shall become immediately due and payable; and (iv) sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine (and Lessor shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar equipment owned or leased by Lessor). In the event that Lessee shall have first paid to Lessor or its assigns the liquidated damages referred to in (iii) above, Lessee shall (except if Lessee has defaulted under Section 9 (e) or 9 (f) in which case Lessee’s rights shall be determined by applicable bankruptcy law) be entitled to purchase, for a period of thirty (30) days after any such payment is made, all of the equipment to which the liquidated damages payment applies at the fair market value of the equipment; provided, however, that such fair market value shall not exceed any limitation specified in the relevant Equipment Schedule. In the event that Lessee elects not to purchase any of the equipment to which the liquidated damages payment applies, Lessee shall thereafter be entitled to receive all rentals or proceeds received from any reletting or sale of the Equipment during the balance of the Initial Term (after deduction of Lessor's expected residual value of the Equipment at the expiration of the Initial Term or any extension thereof, which shall not be in excess of the limitations on the calculation of fair market value in any such Equipment Schedule covering the equipment in question, and of all expenses incurred in connection therewith) said amount never to exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor shall have no obligation to sell the Equipment. Lessee shall in any event remain fully liable for reasonable damages as provided by law and for all costs and expenses incurred by Lessor or its assigns on account of such default including but not limited to all court costs and reasonable attorney's fees. Lessee hereby agrees that, in any event, it will be liable for any deficiency after any lease or other disposition of the Equipment. The rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. 10.1. Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company;
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company's Subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's Subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding (including, without limitation, the entry of any order for relief against it shall occur or the appointment Company's Subsidiaries, or any one of a receiverthem, trustee, custodian shall take action to authorize or other similar official for it or for effect any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunderactions in any such proceeding;
(bd) If breach by the Company in any material respect of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other Loan Documents or the Factoring Agreement, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent's satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company in any material respect of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof and Paragraphs 4, 5, 6, 7, and 10 of the Security Agreement-Accounts, Inventory, General Intangibles, Equipment and Other Collateral;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing any Indebtedness of the Company having a principal amount in excess of $250,000;
(i) Xxxxxxxxx Xxxxx ceases for any reason whatsoever (other than as described above in clause (iii)) to be actively engaged in the management of the Company or (ii) either Xxxxxxxx XxXxxxx for any reason whatsoever or Xxxxxxxxx Xxxxx due to her permanent disability, ceases to be actively engaged in the management of the Company unless provided no other Event of Default is existing, a suitable replacement acceptable to Agent is in place not later than 120 days after such disability or departure (provided, however, in the event there is an existing Event of Default at the time of such disability or departure, a suitable replacement satisfactory to Agent shall be in place not later than 60 days after such disability or departure) or (iii) in the case of the death of Xxxxxxxxx Xxxxx, the Agent has occurredobtained the JC Life Insurance Assignment.
(ii) the stock of the Company presently held (directly or indirectly) by Xxxxxxxxx Xxxxx is transferred, then provided that so long as an Event of Default has not occurred and is continuing, Xxxxxxxxx Xxxxx may transfer stock (a) to any trust for the Holder maybenefit of her children and/grandchildren for estate planning purposes, without further notice (b) so long as after giving effect to any such transfer, (i) Xxxxxxxxx Xxxxx and any trust for the benefit of her children and/or grandchildren collectively hold more than 40% of the issued and outstanding shares of the Company, (ii) Xxxxxxxxx Xxxxx and any trust for the benefit of her children and/or grandchildren collectively are the largest shareholder of the Company and (iii) Xxxxxxxxx Xxxxx remains a director of the Company or (c) to her estate upon her death so long as the Agent has obtained the JC Life Insurance Assignment.
(j) the occurrence of any default or event of default (after giving effect to any grace periods) under the Factoring Agreement or the Factoring Agreement shall be terminated or the parties shall fail to operate thereunder, other than the termination of the Factoring Agreement by the Company in accordance with the Factoring Termination Agreement.
10.2. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that, the principal amount making of all future loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Note at Financing Agreement shall be thereafter in the time outstandingAgent's or the Required Lenders' sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties, shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Lenders' reasonable judgment. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all other amounts payable under this Note to be forthwith Obligations shall become immediately due and payable, whereupon such principal and ; (b) the Agent may charge the Company the Default Rate of Interest on all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that then outstanding or thereafter incurred Obligations in case the Principal lieu of the Note becomes due and payable by declaration or otherwiseinterest provided for in Section 8 of this Financing Agreement, then provided that, with respect to this clause "(b)" the Agent has given the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection written notice of the sums so due and unpaidEvent of Default, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteprovided further however, wherever situated, that no notice is required if the monies adjudicated or decreed to be payable.Event of Default is the Event listed in Paragraph 10.1
Appears in 1 contract
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Medical Center shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for twenty (A20) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolventMedical Center by GKF;
(d) Medical Center ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Medical Center seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Medical Center's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; ornot be vacated.
(iiif) The Company shall fail to pay Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyMedical Center, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default. In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. · Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 1 contract
Samples: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of any Company or the calling of a meeting of the creditors of any Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default such Company;
(“Event b) the failure of Default”):any Company to generally meet its debts as they mature;
(i) The the commencement by any Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it any Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of such a Company, provided that such Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by any Company’s Subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against any Company’s Subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or any Company’s Subsidiaries, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by any Company of any warranty, representation or covenant contained herein (other than those referred to in subparagraphs (e) and (f) below) or in any other written agreement between such Company or CIT, provided that such Default by such Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT’s satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by any Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 hereof; Paragraphs 6.3 and 6.4 (other than the first and second sentences of Paragraph 6.4) hereof; Paragraphs 7.1, 7.5, and 7.8 through 7.13 hereof;
(f) failure of the Companies or any one of them to pay any of the Obligations when due, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Companies or any one of them shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this subparagraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of CIT, subject any of the Companies to any tax, penalty or other liability material to the business, operations or financial condition of any such Company;
(h) without the prior written consent of CIT and, except as permitted in the Subordination Agreement, the Companies or any one of them shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt; or
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Companies or any one of them having a principal amount in excess of Two Hundred Fifty Thousand Dollars ($250,000.00).
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in CIT’s sole discretion and the obligation of CIT to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties shall cease unless such Default is cured to CIT’s satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default: (a) all Obligations shall become immediately due and payable; (b) CIT may charge the Companies the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause “(b)” CIT has given the Companies written notice of the Event of Default; provided, however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c); and (c) CIT may immediately terminate this Financing Agreement upon notice to the Companies; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c), this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by CIT. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
10.3 Immediately upon the occurrence of any Event of Default, CIT may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Companies’ expense, such of the Companies’ personnel, supplies or space at the Companies’ places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Companies or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Companies or CIT; (c) sell, assign and deliver the Collateral, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT’s sole option and discretion, and CIT may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Companies; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. CIT shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Companies or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, CIT shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CIT shall deem appropriate and any such costs shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to this paragraph shall not effect commercial reasonableness of the sale. The Companies agree, at the request of CIT, to assemble the Inventory and Equipment and to make it available to CIT at premises of the Companies or elsewhere and to make available to CIT the premises and facilities of the Companies for the purpose of CIT’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations, whether due or to become due, in such order as CIT may elect, and the Companies shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the Companies or their successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Companies hereby indemnifies CIT and holds CIT harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it claims brought by the Companies, the Companies as debtor-in-possession, any secured or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part unsecured creditors of the Principal when due hereunder;
(b) If an Event Companies, any trustee or receiver in bankruptcy, or otherwise), and the Companies hereby agree to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstanding, foregoing) have been finally and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that indefeasibly paid in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalfull. In case furtherance thereof CIT, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgement. Any applicable mortgage(s), deed(s) of trust or assignment(s) issued to CIT on the Company Real Estate shall fail forthwith to pay such amount, govern the Holder may commence an action or proceeding at law or in equity for the collection rights and remedies of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCIT thereto.
Appears in 1 contract
Events of Default and Remedies. 9.1 Notwithstanding anything hereinabove to the contrary, the Agent acting for the Lenders may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred and be continuing shall constitute an event business of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or the calling of a general meeting of the creditors of the Company for any substantial part purposes of its property, or shall consent to compromising the commencement against it debts and obligations of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in Company;
(b) the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit Company admits in writing its inability to apply generally pay its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i)as they mature;
(iic) Any proceeding shall be instituted the commencement by the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against the Company seeking to adjudicate it a bankrupt or insolventof any bankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangementreceivership or similar proceedings under any federal or state law provided, adjustmenthowever, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either that such proceeding Default shall not have been be deemed an Event of Default if the proceeding, petition, case or arrangement is dismissed or shall not have been stayed for a period of within sixty (60) days of the filing of, or the commencement of, such petition, case, proceeding or arrangement;
(e) material breach by the Company of any warranty, representation (representations and warranties referred to in this subparagraph e shall be deemed made as of each i) Reporting Date, whether or not any report is in fact given to the Agent or ii) request for a Revolving Loan or iii) request for the Agent's assistance in obtaining a Letter of Credit or iv) the posting of any Obligation to the loan account) or any covenant contained herein (other than those otherwise referred to in this Section 9) or in any other agreement between the Company and the Agent relating to this Financing Agreement, provided that such Default by the Company of any of the actions sought warranties, representations or covenants referred to in this clause (e) shall not be deemed to be an Event of Default unless and until such Default shall remain unwaived or unremedied to the Agent's reasonable satisfaction for a period of fifteen (15) days from the date of the Agent's discovery of such breach (the Agent shall endeavor to notify the Company of such breach but the failure to so notify shall not detract from the Agent's rights or give the Company any claim, course of action or defense);
(f) breach by the Company of any warranty, representation or covenant of: i) the first sentence of Section 3.3; or ii) Section 3.4; or iii) Section 5.3; or iv) Section 6.5 (only as it relates to insurance on the Inventory); or v) Section 6.6; or vii) Section 6.10 (other than sub-paragraphs A (ii), B and F thereof); or Section 6.17;
(g) breach by the Company of sub-paragraphs A (ii), B or F of Section 6.10, provided that such Default by the Company shall not be deemed to be an Event of Default unless and until such Default shall remain unwaived or unremedied for a period of fifteen (15) days from the date of such Default;
(h) except as otherwise provided in Section 7.12 of this Financing Agreement, failure of the Company to pay any of the Obligations within ten (10) days of the due date thereof;
(i) the Company shall i) engage in any "prohibited transaction" as defined in ERISA, ii) have any "accumulated funding deficiency" as defined in ERISA, iii) have any Reportable Event as defined in ERISA, iv) terminate any Plan, as defined in ERISA or v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any Plan, as defined in ERISA, and with respect to this sub-paragraph i) such event or condition x) remains uncured for a period of ninety (including90) days from date of occurrence and y) could reasonably be expected to subject that Company to any tax, without limitationpenalty or other liability materially adverse to the business, operations or financial condition of the Company and its Subsidiaries taken as a whole;
(j) the Company shall default in the payment of, or other performance under, any indenture or other instrument evidencing the Senior Notes, or any other recourse Indebtedness of the Company in excess of $3,000,000.00, if as a result of such default, the entry maturity of any order for relief against it Indebtedness evidenced by any such indenture or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of instrument is accelerated prior to its property) shall occurstated maturity; or
(iiik) The without the prior written consent of the Required Lenders, the Company shall fail to pay amend or modify the any part Senior Notes.
9.2 Upon the occurrence of a Default and/or an Event of Default, at the option of the Principal when due hereunder;
(b) If Agent, all loans and advances provided for in Section 3.1 of this Financing Agreement shall be made thereafter in the Agent's sole discretion and the obligation of the Agent acting for the Lenders to make Revolving Loans and/or assist the Company in obtaining Letters of Credit shall cease until such time as the Default is timely cured to the Agent's reasonable satisfaction or the Event of Default is waived. Further, at the option of the Agent, or at the direction of the Required Lenders, upon the occurrence of an Event of Default described above (unless waived): i) all Obligations shall upon notice (provided, however, that no such notice is required if the Event of Default is the Event of Default listed in Sections 9.1(c) or 9.1(d)) become immediately due and payable; ii) the Agent may thereafter charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 7.1 of this Financing Agreement provided a) the Agent has occurredgiven the Company written notice of the Event of Default, then provided, however, that no notice is required if the Holder Event of Default is the Event of Default listed in Sections 9.1(c) or 9.1(d) and b) the Company has failed to cure the Event of Default within fifteen (15) days after x) the Agent deposited such notice in the United States mail or y) the occurrence of the Event of Default listed in Sections 9.1(c) or 9.1(d); and iii) the Agent may, without further and shall at the direction of the Required Lenders, immediately terminate this Financing Agreement upon notice to the Company, declare provided, however, that no notice of termination is required if the principal amount Event of this Note Default is the Event of Default listed in Sections 9.1(c) or 9.1(d). Notwithstanding anything herein contained to the contrary, if the Agent waives all Events of Default, then by written notice to the Company, the acceleration of the Obligations will be rescinded and all remedies and actions then being exercised by the Agent shall cease. The exercise of any option is not exclusive of any other option which may be exercised at any time by the Agent.
9.3 Upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located copies of any and all documents, instruments, files and records, relating to the Accounts, or the Agent may use such of the Company's personnel, supplies or space at the time outstandingCompany's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part, any amounts payable under this Note to be forthwith due owing on any Accounts and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
issue credits in the name of the Company or the Agent; (c) The Company covenants that in case sell, assign and deliver the Principal of the Note becomes due Collateral and payable by declaration any returned, reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discretion, and, to the extent permitted by applicable law, the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory without judicial process, and to enter any premises where any Inventory may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the name of the Company will pay or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and, to the Holder of this Noteextent permitted by applicable law, the whole amount that then Agent shall have the right to purchase at any such sale. If any Inventory shall require repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory in such saleable form as the Agent shall reasonably deem appropriate. The Company agrees, at the request of the Agent, to assemble the Inventory and to make it available to the Agent at premises of the Company or such other location reasonably designated by the Agent for the purpose of the Agent's taking possession of, removing or putting the Inventory in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent's exercise of any of the foregoing rights, (after deducting all reasonable charges, costs and expenses, including reasonable attorneys' fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due due, and payable on this Note for Principal. In case the Company shall fail forthwith remain liable to pay such amountthe Agent for any deficiencies, and the Holder may commence an action Agent in turn agrees to remit to the Company or proceeding at law its successor or in equity for the collection assign, any surplus resulting therefrom. The enumeration of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed foregoing rights is not intended to be payableexhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative.
Appears in 1 contract
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the company, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of any Borrower or of the Guarantor or the calling of a meeting of the creditors of any Borrower or of the Guarantor for purposes of compromising the debts and be continuing shall constitute an event obligations of default any Borrower or the Guarantor; (“Event b) the failure of Default”):any Borrower or of the Guarantor to generally meet its or his debts as they mature; (c)
(i) The Company the commencement by any Borrower or by the Guarantor of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it any Borrower or the Guarantor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of any Borrower or of the Guarantor, provided that such a Default shall not be deemed an Event of default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to any Borrower or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Guarantor shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by any subsidiaries of any Borrower, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against any Borrower's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or any of any Borrower's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding; (d) breach by any Borrower of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between any Borrower or CIT, provided that such Default by any Borrower of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT's satisfaction for a period of ten (10) days from the date of such breach; (e) breach by any Borrower of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence or Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof; (f) failure of any Borrower to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit
(i) The Guarantor ceases for any reason whatsoever (other than as a result of death) to be actively engaged in the management of the Borrowers, (ii) the Company fails to own 100% of the issued and outstanding capital stock of any of its subsidiaries or (iii) any change in control with respect to the Company shall occur; (k) if the Guarantor dies or terminates his Guaranty or otherwise fails to perform any of the terms of the Guaranty, all prior to termination of this Financing Agreement and payment in full of all Obligations; (l) any judgment or judgments aggregating in excess of $25,000 or any injunction or attachment is obtained or enforced against the Guarantor and which remains unstayed for more than ten (10) Business Days; or (m) Autodesk, Inc. shall at any time fail to provide trade credit to the Borrowers on terms satisfactory to CIT.
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in CIT's sole discretion and the obligation of CIT to make Revolving Loans shall cease unless such Default is cured to CIT's satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default; (a) all Obligations shall become immediately due and payable; (b) CIT may charge the Borrowers the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, and (c) CIT may immediately terminate this Financing Agreement upon notice to the Borrowers; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by CIT. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
10.3 Immediately upon the occurrence of any Event of Default, CIT may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Borrowers' expense, such of any Borrower's personnel, supplies or space at any Borrower's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of any Borrower or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of any Borrower or CIT; (c) sell, assign and deliver the Collateral, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT's sole option and discretion, and CIT may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by each Borrower; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including Other Collateral without judicial process, and to enter any premises where any Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. CIT shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of any Borrower or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by CIT to the payment of the Obligations, whether due or to become due, in such order as CIT may elect, and the Borrowers shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the applicable Borrower or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. Each Borrower hereby indemnifies CIT and holds CIT harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry Collateral, defending its interests in Collateral (including pursuant to any claims brought by any Borrower, any Borrower as debtor-in-possession, any secured or unsecured creditors of any order for relief against it Borrower, any trustee or the appointment receiver in bankruptcy, or otherwise), and each Borrower hereby agrees to so indemnify and hold CIT harmless, absent CIT's gross negligence or willful misconduct as finally determined by a court of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) competent jurisdiction. The foregoing indemnification shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstanding, foregoing) have been finally and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that indefeasibly paid in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalfull. In case the Company shall fail forthwith to pay furtherance thereof CIT, may establish such amount, the Holder reserves for Obligations hereunder (including any contingent Obligations) as it may commence an action or proceeding at law or deem advisable in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableits reasonable business judgement.
Appears in 1 contract
Samples: Financing Agreement (Planetcad Inc)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing acts or occurrences shall constitute an event of default (“Event of Default”):"EVENT OF DEFAULT" hereunder:
(i) The Company default in the payment of the Purchase Price on the Option Date, or in the payment of the Purchase Price or in the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment on the Lease Termination Date or the Purchase Closing Date, as applicable; or the default in the payment when due of any Basic Rent and the continuance of such default for five (5) Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any subsidiary other amount due hereunder or under any other Transaction Document and the continuance of such default for five (A5) Business Days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein, by Lessee or any Guarantor in any other Transaction Document or otherwise in writing in connection with or pursuant to this Lease or any other Transaction Document, shall institute be false or misleading in any proceeding material respect on the date made or deemed made; or
(iii) an Event of Default under the Credit Agreement;
(iv) The Lessor or any Guarantor shall commence a voluntary case or other proceeding seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, reorganization or other relief or composition of it with respect to itself or its debts under any law relating to bankruptcy, insolvency or reorganization other similar law now or relief of debtors, hereafter in effect or seeking the entry of any order for relief or the appointment of a trustee, receiver, trusteeliquidator, custodian or other similar official for such the Company of it or any subsidiary or for any substantial part of its propertyProperty, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceedingit, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; or (DB) shall take any action to authorize an involuntary case or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any other proceeding shall be instituted commenced against the Company Lessee or any Guarantor seeking liquidation, reorganization or other relief with respect to adjudicate it a bankrupt or insolventits debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, trusteeliquidator, custodian or other similar official for the Company of it or for any substantial part of its propertyProperty, and either such involuntary case or other proceeding shall not have been dismissed or shall not have been stayed remain undismissed and unstayed for a period of sixty (60) days days; or (C) an order for relief shall be entered against the Lessee or any Guarantor under the federal bankruptcy laws as now or hereafter in effect; or
(v) The Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12, 14 and 26 of this Lease or any Guarantor shall fail to observe or perform any covenant or agreement contained in the Guaranty (Lessee); or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vii), the term "abandon" shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Transaction Documents including without limitation maintenance of the actions sought Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Upon the occurrence and during the continuance of any Event of Default, the Lessor may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such proceeding provisions, or any other equitable or legal remedy, all as the Lessor shall deem necessary or advisable; and/or
(ii) by notice to the Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any portion thereof; and/or
(iii) exercise any and all other remedies available under applicable law or at equity.
(c) After the occurrence and during the continuance of a Cancellation Event or Termination Event, in the event the Lessor elects not to terminate this Lease and the Lessee has not exercised its option under Section 15(c), this Lease shall continue in effect and the Lessor may enforce all of the Lessor's rights and remedies under this Lease, including, without limitation, the entry right to recover the Basic Rent and Supplemental Rent as it becomes due under this Lease. For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any portion thereof, (ii) efforts by the Lessor or the Agent to relet the Facility or any portion thereof, including, without limitation, termination of any order for relief against it sublease of the Facility and removal of any subtenant from the Facility, (iii) or the appointment of a receiverreceiver upon the initiative of the Lessor to protect the Lessor's interest under this Lease.
(d) If (i) on the Lease Termination Date, trusteethe Facility is not acquired by the Lessee or its designee by payment of the Purchase Price, custodian or other similar official (ii) on the Cancellation Date or Option Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Facility and the right to enter onto the Site, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such repossession of the Facility or entry onto the Site.
(e) Should the Lessor elect to repossess the Facility or any portion thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such portion thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any portion thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) At any time after the repossession of the Facility or any portion thereof, whether or not this Lease shall have been canceled or terminated, the Lessor may (but shall be under no obligation to) relet the Facility or the applicable portion thereof without notice to the Lessee, for it such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of such reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any substantial part of its property) shall occur; orfailure to collect any rent due upon any such reletting.
(iiig) The Company shall fail to pay the any part remedies herein provided in case of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstandingare in addition to, and without prejudice to, Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other amounts payable under this Note remedies existing at law, in equity or in bankruptcy. Lessor may exercise any remedy without waiving its right to be forthwith due and payableexercise any other remedy hereunder or existing at law, whereupon such principal and all such amounts shall become and be forthwith due and payablein equity or in bankruptcy.
(ch) The Company covenants No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the extent permitted by applicable law, the Lessee waives any right it may have at any time to require the Lessor to mitigate the Lessor's damages upon the occurrence of a Default or Event of Default by taking any action or exercising any remedy that in case may be available to the Principal Lessor, the exercise of remedies hereunder being at the discretion of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableLessor.
Appears in 1 contract
Samples: Lease Agreement (Vincam Group Inc)
Events of Default and Remedies. (a) Any one or more 17.1 Landlord has entered into this Lease upon the condition that Tenant shall punctually and faithfully perform all of Tenant’s covenants, conditions and agreements. Each of the following events which shall have occurred and be continuing shall constitute deemed to be an event of default of Tenant hereunder (each of which is sometimes referred to herein as an “Event of Default”):
(ia) The Company failure of Tenant to timely pay any installment of Rent hereunder when due and such failure continues for a period of ten (10) days from the date of written notice thereof from Landlord to Tenant; provided, however, if Tenant fails to timely pay any regular installment of Rent hereunder more than twice during any twelve (12) month period, then Landlord shall thereafter have no obligation to provide prior written notice of such failure;
(b) intentionally deleted;
(c) failure of Tenant to observe or perform any other covenant, term or condition set forth in this Lease and such failure continues for a period of 30 days from the date of written notice thereof from Landlord to Tenant (provided that if such failure cannot reasonably be cured within 30 days, such failure shall not be deemed an Event of Default under this subsection if Tenant commences to cure such failure within said 30 days and thereafter diligently and continuously prosecutes the curing of such failure until completion);
(d) Tenant or any subsidiary (A) Guarantor shall institute generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or Tenant or any Guarantor shall commence any case, proceeding or voluntary case other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protectionliquidation, relief dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or insolvency, reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; or Tenant or any Guarantor shall take any corporate action to authorize, or in contemplation of, any of the actions set forth above in this subsection (d);
(e) any case, proceeding or other action against the Tenant or any Guarantor shall be commenced seeking to have an order for relief entered against it as debtor or to have it adjudicated a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (i) results in the entry of an order for relief against it which is not fully stayed within seven business days after the entry thereof, or (ii) shall occurremain undismissed for a period of 90 days; or
(iiif) The Company any other failure or default of Tenant which pursuant to any other provision of this Lease is an Event of Default.
17.2 Upon the occurrence of any of such Events of Default, Landlord shall fail have the option to pursue any one or more of the following remedies without any additional notice or demand whatsoever:
(a) Terminate this Lease, or terminate Tenant’s rights (including, but not limited to, Xxxxxx’s right of possession) under this Lease (but not its obligations), and in either event Landlord shall have the right to immediate possession of the Premises and may reenter the Premises, and remove all persons and property therefrom by any lawful means without being guilty in any manner of trespass or otherwise; and any and all damages to Tenant, or persons holding under Tenant, by reason of such re-entry are hereby expressly waived; and any such termination or re-entry on the part of Landlord shall be without prejudice to any remedy available to Landlord for arrears of Rent, breach of contract, damages or otherwise, nor shall the termination of this Lease or of Tenant’s rights under this Lease by Landlord acting under this subsection be deemed in any manner to relieve Tenant from the obligation to pay the any part Rent and all other amounts due or to become due as provided in this Lease for and during the entire unexpired portion then remaining of the Principal when due hereunder;Lease Term.
(b) If an Event Without terminating this Lease, enter upon the Premises, by any lawful means, and without being guilty in any manner of Default described above has occurredtrespass or otherwise and without liability for any damage to Tenant or persons holding under Tenant by reason of such re-entry, then all of which are hereby expressly waived, and do or perform whatever Tenant is obligated hereunder to do or perform under the Holder may, without further notice to the Company, declare the principal amount terms of this Note at the time outstandingLease; and Tenant shall reimburse Landlord on demand for any expenses or other sums which Landlord may incur or expend (plus 10% thereof to cover Landlord’s overhead and administrative costs), pursuant to this Subsection (b), and all other amounts payable under this Note Landlord shall not be liable for any damages resulting to be forthwith due and payable, whereupon Tenant from such principal and all such amounts shall become and be forthwith due and payableaction.
(c) The Company Without waiving such Event of Default, apply all or any part of the Security Deposit to cure the Event of Default or to any damages suffered as a result of the Event of Default.
(d) Pursuit of any of the foregoing remedies by Landlord shall not preclude pursuit of any other remedies herein provided Landlord or any other remedies provided by law or in equity, nor shall pursuit of any of the other remedies herein provided constitute a forfeiture or waiver of any Rent due Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such default; and in such event Tenant shall pay all costs incurred by Landlord for the cost of altering the Leased Premises for another Tenant, all brokerage fees or commissions, and all legal fees in connection therewith.
(e) In the event of termination of this Lease, or termination of Tenant’s right of possession of the Premises, Landlord shall use reasonable efforts to relet the Premises, however, Landlord shall not be obligated to relet the Premises: (1) in preference to other vacant space in the Center; (2) to any affiliate of Tenant or any principal or officer of Tenant or any affiliate of such principal or officer; (3) to any person or entity whose creditworthiness is deemed unacceptable to Landlord; (4) to any person or entity if Landlord determines, in Landlord’s reasonable judgment, would disturb the tenant mix of the Center, or because of such proposed use, would impose unreasonable or excessive demands upon the Center; (5) to any person who has been engaged in litigation with, or who has threatened litigation against Landlord, or any of Landlord’s affiliates; (6) to any person or entity not approved by the holder of any liens or security interests against the Center, or any part thereof (provided that Landlord shall use commercially reasonable efforts to obtain such approval); (7) to a tenant who would cause Landlord to breach or be in default of any of its covenants under any agreements between Landlord and any third party (including, without limitation, other tenants in the Center); (8) to any proposed tenant who is unwilling to execute and deliver to Landlord a lease form reasonably acceptable to Landlord; or (9) where any assignment or sublease would require improvements or changes to be made to the Leased Premises by Landlord, at Landlord’s cost or expense.
(f) Upon the occurrence of an Event of Default, in addition to the other remedies available to Landlord, Landlord at its option, shall be entitled, and is hereby authorized, without any additional notice to Tenant whatsoever, to enter into and upon the Leased Premises by use of a master key, a duplicate key or any other peaceable means, and to change, alter and/or modify the doors locks on all entry doors of the Leased Premises, permanently excluding Tenant and its officers, principals, agents, employees and representatives therefrom. In the event that Landlord has either permanently repossessed the Leased Premises as aforesaid or has elected to terminate this Lease by reason of Tenant’s default, Landlord shall not thereafter be obligated to provide Tenant with a key to the Leased Premises at any time; provided, however, that in case any such instance, during Xxxxxxxx’s normal business hours and at the Principal convenience of Landlord, and upon receipt of a written request from Tenant accompanied by such written waivers and releases as Landlord may require, Landlord may, at its option, (1) escort Tenant or its authorized representative to the Note becomes due Leased Premises to retrieve any personal belongings or other property of Tenant not subject to the Landlord’s lien of security interest described herein, or (2) obtain a list from Tenant of such personal property Tenant intends to remove, whereupon Landlord shall remove such property and payable make it available to Tenant at a time and place designated by declaration or otherwiseLandlord. In the event Landlord elects option (2) above, then the Company will pay Tenant shall pay, in cash and in advance, all reasonable out-of-pocket costs and expenses estimated by Landlord to the Holder be incurred in removing such property and making it available to Tenant, including, but not limited to all moving and/ or storage charges theretofore incurred by Landlord with respect to such property. Xxxxxxxx’s remedies hereunder shall be in addition to, and not in lieu of, any of its other remedies set forth in this NoteLease, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith or otherwise available to pay such amount, the Holder may commence an action or proceeding Landlord at law or in equity for equity. It is intended that this paragraph, and the collection provisions herein contained, shall supersede and be paramount to any conflicting provisions of the sums so due and unpaidTexas Property Code, and may prosecute as well as any such action or proceeding successor statute governing the rights of landlords to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablechange locks of commercial tenants.
Appears in 1 contract
Events of Default and Remedies. (a) Any If any one or more of the following events which (“Events of Default”) shall have occurred occur and be continuing continuing:
(a) The Issuer shall constitute fail to pay any amount of principal or interest under this Note within ten (10) Business Days after such amount becomes due and payable under this Note; or
(b) The Issuer shall fail to comply with any other covenant, agreement or condition contained in this Note within thirty (30) days after receipt of written notice from Payee of such failure stating that the same is an event of default (“Event of Default”):; or
(ic) Any representation or warranty made by the Issuer to the Payee herein shall be inaccurate or incomplete in any material respect when made and shall remain untrue or incomplete in any material respect as of the 30th day after the date on which notice of such untrue or incomplete representation or warranty stating that the same is an Event of Default shall have been given by the Payee to the Issuer; or
(d) The Company Issuer shall generally not pay its debts as the same become due, or shall admit in writing its inability to pay such debts generally, or shall make a general assignment for the benefit of creditors; or any subsidiary (A) proceeding shall institute any proceeding be instituted by or voluntary case against it seeking to adjudicate it as a bankrupt or an insolvent, or seeking dissolution, liquidation, winding up, reorganization, reorganization arrangement, adjustment, protection, relief relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property; and in the event of any proceeding being instituted against it, such proceeding shall remain undismissed or unstayed for a period of one hundred twenty (120) days or shall occur; or
(iii) The Company result in the entry of an order for relief, the appointment of a trustee or receiver or other adverse result to it or it shall fail take any action to pay the authorized any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredactions set forth above; then, then and in any such event, the Holder Payee may, without further by notice to the CompanyIssuer, declare all obligations of the Issuer hereunder (all such obligations, including, without limitation, principal amount of this Note at and interest, collectively referred to herein as the time outstanding, and all other amounts payable under this Note “Obligations”) to be forthwith due and payablepayable in full, whereupon such principal and all such amounts the Obligations shall become and be forthwith due and payable.
(c) The Company covenants that payable in case full, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Principal Issuer. Following an Event of Default and the acceleration of the Note becomes due and payable maturity date of the Obligations (whether automatically, by declaration or otherwise) and continuing (i) until such Event of Default is fully cured by the Issuer or waived by the Payee (in each case, then in accordance with this Note) or (ii) until the Company will Obligations are paid in full, the Issuer shall pay interest (the “Default Interest”) on the unpaid principal amount of this Note at a rate per annum equal to 13.4257% (calculated on the basis of the actual number of days elapsed over a year of 365/366 days), and the Issuer agrees to pay all reasonable costs (including, without limitation, all reasonable attorneys’ fees and expenses) incurred by the Payee in connection with collection of the Obligations and enforcement of Payee’s rights under this Note, provided that the aggregate amount of such costs shall not exceed $100,000.00; and provided, further, that any claim giving rise to such costs shall have been successfully adjudicated. Following an Event of Default and the acceleration of the maturity date of the Obligations (whether automatically, by declaration or otherwise), the proceeds of any payment or collection under this Note, and any other cash received by the Payee in connection with this Note shall be applied by the Payee first, to the Holder payment of accrued and unpaid Default Interest; second, to the payment of accrued and unpaid regular interest at the rate set forth in the first paragraph of this Note; and finally, to the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection payment of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon unpaid principal amount of this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. (a) Any Upon the occurrence of any one or more of the following events which shall have occurred and be continuing shall constitute (the "Events of Default," any one an event of default (“"Event of Default”):"), the party not in default shall have the right to exercise any rights or remedies available in this Lease, at law or in equity. Events of Default shall be:
(i) The Company Tenant's failure to pay when due any rental or other sum of money payable hereunder and such failure is not cured within ten (10) days after written notice thereof;
(ii) Failure by either party to perform any subsidiary other of the terms, covenants or conditions contained in this Lease if not remedied within thirty (A30) days after receipt of written notice thereof, or if such default cannot be remedied within such period, such party does not within thirty (30) days after written notice thereof commence such act or acts as shall institute any proceeding be necessary to remedy the default and shall not thereafter complete such act or voluntary case seeking to adjudicate it acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or seeking dissolutionfile any debt or proceedings, liquidation, winding up, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order file a petition for relief or the appointment of a receiver, trustee, custodian receiver or other similar official trustee for all or substantially all of Tenant's assets and such petition or appointment shall not have been set aside within sixty (60) days from the Company date of such petition or any subsidiary or for any substantial part of its propertyappointment, or shall consent to the commencement against it of such a proceeding or case, or shall file if Tenant makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, petitions for or enters into an arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiiiv) The Company shall fail Tenant allows its leasehold estate to pay the be taken under any part writ of the Principal when due hereunder;execution and such writ is not vacated or set aside within thirty (30) days.
(b) If In addition to its other remedies, Landlord, upon an Event of Default described above has occurredby Tenant, then shall have the Holder mayimmediate right, after any applicable grace period expressed herein, to terminate and cancel this Lease and/or to reenter and remove all persons and properties from the Premises and dispose of such property as it deems fit, provided Landlord's actions shall be in accordance with applicable legal procedures. If Landlord reenters the Premises, it may either terminate this Lease or, from time to time without further terminating this Lease, make such alterations and repairs as may be necessary or appropriate to relet the Premises and relet the Premises upon such terms and conditions as Landlord deems advisable without any responsibility on Landlord whatsoever to account to Tenant for any surplus rents collected. No retaking of possession of the Premises by Landlord shall be deemed as an election to terminate this Lease unless a written notice of such intention is given by Landlord to the Company, declare the principal amount of this Note Tenant at the time outstandingof reentry; but, notwithstanding any such reentry or reletting without termination, Landlord may at any time thereafter elect to terminate for such previous default. Landlord will use reasonable efforts to mitigate its damages in the event of any such Event of Default by Tenant; provided, however, as used herein, the term "reasonable efforts to mitigate its damages" shall never be construed to require Landlord to make efforts to mitigate its damages in excess of the requirement to mitigate damages imposed upon Landlord under applicable North Carolina law in effect as of the date of this Lease. In the event of an elected termination by Landlord, whether before or after reentry, Landlord may recover from Tenant damages, including the costs of recovering the Premises, and all other amounts Tenant shall remain liable to Landlord for the total amount of (i) the Annual Rental as would have been payable under this Note by Tenant hereunder for the remainder of the term, less (ii) the rentals actually received from any applicable reletting, or less the reasonable rental value of the Premises for the remainder of the term (which amount may, at Landlord's election, be accelerated to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwisein full, then as of the Company will pay Event of Default and recoverable as damages in cash a lump sum, in which event said amount shall be discounted to present value, using a discount rate equal to the Holder then rate publicly announced by NationsBank of this NoteNorth Carolina, N.A., as its "prime" rate). In determining the Annual Rental which would be payable by Tenant subsequent to default, the whole amount that then Annual Rental for each Lease Year of the unexpired term shall have become due and be equal to the Annual Rental payable on by Tenant for the last Lease Year prior to the default. If any rent owing under this Note for Principal. In case the Company shall fail forthwith Lease is collected by or through an attorney, Tenant agrees to pay such amount, Landlord's reasonable attorneys' fees to the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableextent allowed by applicable law.
Appears in 1 contract
Samples: Lease Agreement (Syntel Inc)
Events of Default and Remedies. (aA) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”)::
(i) The Company a default in the payment when due (together with any applicable grace period) of all or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialObligations; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);or
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief an event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any default stipulated in Section 8.1 of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) Credit Agreement shall occuroccur and be continuing; or
(iii) The Company shall fail to pay a default by the Owner occurs in the due and punctual observance of any part of the Principal covenants contained in subsections (A)(i), (B) (other than subclauses (iv), (vi) and (xiii) thereof), (G), (H), (J), (L), (M), (N), (O), (P), (Q), (S), (T), (U), (V) or (W) of Section 5 of this Mortgage; or
(iv) a default by the Owner occurs in the due and punctual observance of any of the covenants contained in subsections (C), (E), (F), (I), (K), or (R) or subclauses (ii) and (iii) of subsection (A) and subclauses (iv), (vi) or (xiii) of subsection (B) of Section 5 of this Mortgage and such default continues unremedied for a period of thirty (30) days; or
(v) it becomes impossible or unlawful for the Owner to fulfill any of the covenants and obligations contained in this Mortgage and the Mortgagee considers that such impossibility or illegality will have a material adverse effect on its rights under this Mortgage or the enforcement thereof.
(B) If any Event of Default shall occur and be continuing, the Mortgagee shall be entitled:
(i) to demand payment by written notice to the Owner of the Obligations, whereupon such payment shall be immediately due and payable, anything contained in the Credit Agreement, the Note, this Mortgage or any of the other relevant Transaction Documents to the contrary notwithstanding and without prejudice to any other rights and remedies of the Mortgagee or the Creditors, as the case may be, under the Credit Agreement, the Note, this Mortgage or any of the other relevant Transaction Documents, provided, however, that if, before any sale of the Vessel, all defaults shall have been remedied in a manner satisfactory to the Mortgagee, the Mortgagee may waive such defaults by written notice to that effect to the Owner; but no such waiver shall extend to or affect any subsequent or other default or impair any rights and remedies consequent thereon;
(ii) at any time and as often as may be necessary to take any such action as the Mortgagee may in its discretion deem advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees of counsel) so incurred by the Mortgagee in or about the protection of such security shall be repayable to it by the Owner promptly after demand, together with interest thereon at the rate provided for in Section 5(Q) hereof from the date whereon such expense or liability was incurred by the Mortgagee. The Owner shall promptly execute and deliver to the Mortgagee such documents or cause promptly to be executed and delivered to the Mortgagee such documents, if any, and shall promptly do and perform such acts, if any, as in the opinion of the Mortgagee or its counsel may be necessary or advisable to facilitate or expedite the protection, maintenance and enforcement of the security created by this Mortgage;
(iii) to exercise all the rights and remedies in foreclosure and otherwise given to the Mortgagee by any applicable law, including those under the provisions of the Ship Mortgage Act;
(iv) to take possession of the Vessel, wherever the same may be, without prior demand and without legal process (when permissible under applicable law) and cause the Owner or other Person in possession thereof forthwith upon demand of the Mortgagee to surrender to the Mortgagee possession thereof as demanded by the Mortgagee, and by notice to the Owner, request that the crew be ordered to remain onboard the Vessel, that the Master of the Vessel be ordered to sail the Vessel at the cost of the Owner to any port designated by the Mortgagee and/or that the Owner take such action regarding the Vessel as may be requested by the Mortgagee;
(v) to require that all policies, contracts and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such adjusters, brokers or other insurers as the Mortgagee may nominate;
(vi) to collect, recover, compromise and give a good discharge for all claims then outstanding or thereafter arising under the Insurances or any of them and to take over or institute (if necessary using the name of the Owner) all such proceedings in connection therewith as the Mortgagee in its absolute discretion deems advisable and to permit the brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
(vii) to discharge, compound, release or compromise claims against the Owner in respect of the Vessel which have given or may give rise to any charge or lien on the Vessel or which are or may be enforceable by proceedings against the Vessel;
(viii) to take appropriate judicial proceedings for the foreclosure of this Mortgage and/or for the enforcement of the Mortgagee's rights hereunder or otherwise; recover judgment for any amount due hereunderby the Owner in respect of the Credit Agreement, the Note, this Mortgage, or any of the other relevant Transaction Documents and collect the same out of any property of the Owner;
(ix) to sell the Vessel at public auction, free from any claim of or by the Owner of any nature whatsoever by first giving notice of the time and place of sale with a general description of the property in the following manner:
(a) by publishing such notice for ten (10) consecutive days in a daily newspaper of general circulation published in New York City;
(b) If an Event if the place of Default described above has occurredsale should not be New York City, then the Holder mayalso by publication of a similar notice in a daily newspaper, without further notice to the Companyif any, declare the principal amount of this Note published at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.place of sale; and
(c) The Company covenants that in case by sending a similar notice by facsimile confirmed by registered mail to the Principal Owner at its address hereinafter set forth at least fourteen (14) days prior to the date of sale; Such sale of the Note becomes due Vessel may be held at such place as the Mortgagee in such notices may have specified, or such sale may be adjourned by the Mortgagee from time to time by announcement at the time and payable by declaration place appointed for such sale or otherwise, then for such adjourned sale and without further notice or publication the Company will pay in cash Mortgagee may make such sale at the time and place to which the same shall be so adjourned; and such sale may be conducted without bringing the Vessel to the Holder place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at such sale.
(x) pending sale of this Notethe Vessel (either directly or indirectly) to manage, charter, lease, insure, maintain and repair the whole amount Vessel and to employ or lay up the Vessel upon such terms, in such manner and for such period as the Mortgagee in its absolute discretion deems expedient and for the purpose aforesaid the Mortgagee shall be entitled to do all acts and things incidental or conducive thereto and in particular to enter into such arrangements respecting the Vessel, her insurance, management, maintenance, repair, classification and employment in all respects as if the Mortgagee were the owner of the Vessel and without being responsible for any loss thereby incurred;
(xi) to recover from the Owner on demand any such losses as may be incurred by the Mortgagee in or about the exercise of the powers vested in the Mortgagee under Section 7(B)(x) above with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such losses were incurred by the Mortgagee; and
(xii) to recover from the Owner on demand all expenses, payments and disbursements (including reasonable fees and expenses of counsel) incurred by the Mortgagee in or about or incidental to the exercise by it of any of the powers vested in it hereunder together with interest thereon at the rate provided for in Section 5(Q) hereof from the date when such expenses, payments or disbursements were incurred by it; PROVIDED, ALWAYS, that then any sale of the Vessel or any interest therein by the Mortgagee pursuant to and in compliance with Section 7(B)(ix) above shall have become due operate to divest all right, title and payable on this Note interest of the Owner, its successors and assigns, in or to the Vessel so sold and upon such sale the purchaser shall not be bound to see or inquire whether the Mortgagee's power of sale has arisen in the manner herein provided and the sale shall be deemed to be within the power of the Mortgagee and the receipt of the Mortgagee for Principalthe purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor. In case the Company Mortgagee shall fail forthwith have proceeded to pay enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such amountproceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Mortgagee, then and in every such case the Holder may commence an action Owner and the Mortgagee shall be restored to their former positions and rights hereunder with respect to the property, subject or proceeding at law or in equity for the collection intended to be subject to this Mortgage, and all rights, remedies and powers of the sums so due and unpaid, and may prosecute any Mortgagee shall continue as if no such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableproceedings had been taken.
Appears in 1 contract
Events of Default and Remedies. (a) Any 8.1 The entire unpaid principal amount of this Note, together with all accrued interest hereon, at the option of the holder of this Note exercised by written notice to the Maker at its principal executive offices, shall forthwith become and be due and payable if any one or more of the following events which (herein called "Events of Default") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the time of such notice, that is to say:
(a) if default shall be made in the due and punctual payment of the principal of this Note when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable;
(c) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days after notice thereof by the holder hereof to the Maker;
(d) if any representation made by the Maker contained herein shall prove to be inaccurate in any material respect when made, or if this Note shall cease to be enforceable in accordance with its terms against the Maker, or the Maker shall so state in writing;
(e) if an Event of Default under any of the other Notes shall have occurred and be continuing continuing, if the effect thereof is to cause the holder or holders thereof to cause such obligations, respectively, to become due prior to the date of stated maturity (unless such holder or holders shall constitute an event of default (“subsequently have waived such Event of Default”):);
(f) if the Maker shall:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking admit in writing its inability to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or pay its debts under any law relating generally as they become due or it shall generally not pay its debts as such debts became due;
(ii) file a petition in bankruptcy or a petition to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry take advantage of any order insolvency act;
(iii) make an assignment for relief or the benefit of creditors;
(iv) consent to the appointment of a receiver, trustee, custodian receiver of itself or other similar official for such of the Company whole or any subsidiary substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or for answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof;
(g) if a court of competent jurisdiction shall enter, except at the direct or indirect request of the holder of this Note, an order, judgment, or decree appointing, without the consent of the Maker, a receiver of the Maker or of the whole or any substantial part of its property, or shall consent to the commencement approving a petition filed against it seeking reorganization or arrangement of the Maker under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such a proceeding order, judgment or casedecree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(h) if, or shall file an answer in under the provisions of any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment other law for the benefit of creditors; relief or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief aid of debtors, any court of competent jurisdiction shall assume custody or seeking control of the entry Maker or of an order for relief the whole or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its propertyproperty and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control.
8.2 In the case any one or more of the Events of Default specified in Section 8.1 hereof shall have occurred and be continuing, the holder of this Note may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note, or the holder of this Note may at its option exercised by written notice to the Maker at its principal executive offices declare the unpaid principal balance hereof, together with all accrued interest thereon, immediately due and payable, and either such proceeding shall not have been dismissed otherwise proceed to enforce the payment of all sums due upon this Note or shall not have been stayed for a period of sixty (60) days to enforce any other legal or any equitable right of the actions sought in such proceeding (including, without limitation, holder of this Note. In the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If event an Event of Default described above has occurred, then shall have occurred and the Holder may, without further notice to the Company, declare the principal amount holder of this Note at shall employ attorneys, or incur other costs and expenses for the time outstandingcollection of payments due or to become due, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case or for the Principal enforcement or performance or observance of any obligation or agreement of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of Maker under this Note, the whole amount Maker agrees that then shall have become due it will pay to the holder, on demand, the reasonable fees of such attorney together with all other costs and payable on expenses incurred by the holder.
8.3 No remedy herein conferred upon the holder of this Note for Principal. In case the Company is intended to be exclusive of any other remedy and each and every such remedy shall fail forthwith be cumulative and shall be in addition to pay such amount, the Holder may commence an action every other remedy given hereunder or proceeding now or hereafter existing at law or in equity for or by statute or otherwise.
8.4 No course of dealing between the collection Maker and the holder of this Note or any delay on the part of the sums so due and unpaid, and may prosecute Holder hereof in exercising any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, rights hereunder shall operate as a waiver of any rights of the monies adjudicated or decreed to be payableholder hereof.
Appears in 1 contract
Samples: Securityholders Agreement (Electronic Retailing Systems International Inc)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Lessee fails to pay an installment of rent on or more before the date when the same becomes due and payable and such failure continues for a period of five business days;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Lessee shall fail to observe or perform any subsidiary of the other material obligations required to be observed or performed by Lessee hereunder and such failure shall continue uncured for ten (A10) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief Lessee by Lessor or the appointment of then assignee hereof;
(d) Lessee ceases doing business as a receivergoing concern, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any generally pay its debts as they become due, files a voluntary petition of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsthe petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or if it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation;
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within sixty (60) days after the appointment without Lessee's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereundernot be vacated;
(bf) If Lessee defaults in the performance or observation of any material term, condition or covenant of any loan agreement, indenture, trust agreement, lease or similar agreement to which Lessee is a party or by which Lessee is bound involving an obligation by Lessee to pay more than $100,000 and such default continues beyond any applicable cure period;
(g) Lessee enters into any transaction, the effect of which adversely affects (i) a material portion of Lessee's business value and (ii) the ability of Lessee, in Lessor's reasonable judgment, to repay Lessee's obligations under the Lease as they become due. Upon the occurrence of an Event of Default described above has occurredDefault, then Lessor may at its option do any one or more of the Holder may, without further following: (i) by written notice to the CompanyLessee terminate this Lease as to any or all Equipment Schedules; (ii) whether or not this Lease is terminated as to any or all Equipment Schedules, declare the principal amount take possession on not less than three (3) days' notice of this Note at the time outstanding, and any or all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Equipment listed on any or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteall Equipment Schedules, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee and Lessee hereby agrees, to return said Equipment to Lessor as provided in this Lease; (iii) recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, all past due amounts as well as an amount equal to the present value of all monies adjudicated or decreed to be paid by Lessee during the remaining Initial Term or any successive period then in effect, calculated by discounting at the rate of six percent (6%) per annum compounded monthly, which payment shall become immediately due and payable; and (iv) sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine (and Lessor shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar equipment owned or leased by Lessor). In the event that Lessee shall have first paid to Lessor or its assigns the liquidated damages referred to in (iii) above, Lessee shall thereafter be entitled to receive all rentals or proceeds received from any reletting or sale of the Equipment during the balance of the Initial Term (after deduction of Lessor's expected residual value of the Equipment at the expiration of the Initial Term or any extension thereof and of all expenses incurred in connection therewith) said amount never to exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor shall have no obligation to sell the Equipment. Lessee shall in any event remain fully liable for reasonable damages as provided by law and for all reasonable costs and expenses incurred by Lessor or its assigns on account of such default including but not limited to all court costs and reasonable attorney's fees. Lessee hereby agrees that, in any event, it will be liable for any deficiency after any lease or other disposition of the Equipment. The rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the The following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):" by the Debtor hereunder:
(i1) The Company or any subsidiary An Event of Default (Aas defined therein) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts occur under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i)Notes, after giving effect to all notice provisions and cure periods provided for therein;
(ii2) Any proceeding shall be instituted against Failure by the Company seeking Debtor to adjudicate it comply with or perform any provision of this Agreement, provided, however, that with respect to a bankrupt or insolventfailure by the Debtor to comply with any of the provisions of Section 2(c), or seeking dissolution(e), liquidation(i), winding up(j), reorganizationand (k) of this Agreement, arrangement, adjustment, protection, relief such failure is not remedied within twenty (20) days after the Debtor's receipt of debtors, or seeking written notice of same; or
(3) Subjection of any of the entry Collateral to levy of an order for relief or the appointment of a receiver, trustee, custodian execution or other similar official for the Company judicial process, which is not released, discharged, dismissed, stayed or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed fully bonded for a period of sixty (60) 30 days or any of more after its entry, issue or stay, as the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;case may be.
(b) If an Event Upon any default by the Debtor hereunder, the Agent, on behalf of Default described above has occurredthe Lenders, then shall have all the Holder mayrights, without further notice remedies and privileges with respect to repossession, retention and sale of any or all of the Company, declare Collateral of the principal amount Debtor and disposition of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableproceeds as are accorded by the applicable sections of the Uniform Commercial Code.
(c) The Company covenants that in case Upon any default by the Principal Debtor hereunder and upon demand of the Note becomes due Agent, the Debtor shall assemble the Collateral and payable by declaration or otherwise, then the Company will pay in cash make it available to the Holder Agent at the place and at the time designated in the demand.
(d) If the Debtor shall default in the performance of any of the provisions of this NoteAgreement on the Debtor's part to be performed, the whole amount that then shall have become due and payable on this Note for Principal. In case Agent may, or at the Company shall fail forthwith to pay such amountdirection of the Required Lenders (as hereinafter defined in Section 5(g)) shall, the Holder may commence an action or proceeding at law or in equity perform same for the collection of Debtor's accounts and any monies expended in so doing shall be chargeable with interest to the sums so due Debtor and unpaidadded to the indebtedness to the Lenders secured hereby, and may prosecute any such action or proceeding ratably according to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payabletheir respective Loan Percentage.
Appears in 1 contract
Samples: Security Agreement (Dental Medical Diagnostic Systems Inc)
Events of Default and Remedies. (a) Any Each and every one or more of the following events or conditions shall, for the purposes of this Agreement, constitute an Event of Default and any event or circumstance that exists which, with the giving of notice, the passage of time or both, would constitute an Event of Default, shall constitute a Default hereunder:
(i) any failure by Pledgor and/or Principal to perform their covenants and obligations in this Agreement or the Promissory Note;
(ii) the Principal or Pledgor fails to make any payment of any amount forming part of the Obligations, as required under any agreement made with the Pledgee;
(iii) proceedings are taken to enforce any encumbrance on any of the property or assets of Pledgor or the Principal;
(iv) The Principal and/or Pledgor is adjudged bankrupt or becomes insolvent, a petition in bankruptcy receiving order is filed or made against the Principal and/or Pledgor, or proceedings of any type are instituted in any jurisdiction in respect of the alleged insolvency or bankruptcy of the Principal and/or Pledgor;
(v) the Principal and/or Pledgor default in payment or in the observance or performance of its obligations or liabilities to third parties who, as a result of such default, may acquire the right to take proceedings against the Principal and/or Pledgor or the collateral in which the Pledgee has in interest which might adversely affect the security of the Pledgee or its ability to recover payment of the Obligations;
(vi) the Principal and/or Pledgor sells, attempts to sell, parts with possession of or abandons any material part of the collateral in which the Pledgee has an interest, or commits or threatens to commit any act of bankruptcy, or the Pledgee deems the collateral in which it has an interest is in danger of being sold; and/or
(vii) a material loss, theft, damage, destruction or encumbrance to or of any of the collateral in which the Pledgee has an interest or the making of any levy, seizure or attachment in relation to any of it.
(b) During the period during which a Default or an Event of Default shall have occurred and be continuing shall constitute an event of default (“Event of Default”):continuing:
(i) The Company or any subsidiary (A) the Pledgee shall institute any proceeding or voluntary case seeking have all of the rights and remedies with respect to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment Pledged Collateral of a receiver, trustee, custodian secured party under the PPSA (whether or other similar official for not said PPSA is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer laws in effect in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall jurisdiction where any rights and remedies hereunder may be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i)asserted;
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt Pledgee in its discretion may, in its name or insolventin the name of Pledgor or otherwise, demand, sue for, collect or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief receive any money or property at any time payable or receivable on account of debtors, or seeking the entry of an order in exchange for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orPledged Collateral;
(iii) The Company the Pledgee may, upon prior written notice to Pledgor of the time and place, with respect to the Pledged Collateral or any part thereof that shall fail to pay then be or shall thereafter come into the possession, custody or control of the Pledgee or any of its assignees, sell, assign or otherwise dispose of all or any part of such Pledged Collateral, at such place or places as the Principal when due hereunder;
Pledgee deems best, and for cash or for credit or for future delivery (bwithout thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Pledgee, its assignees hereunder or anyone else may be the purchaser, assignee or recipient of any or all of the Pledged Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) If an Event and thereafter hold the same absolutely, free from any claim or right of Default described above has occurredwhatsoever kind, then the Holder including any right or equity of redemption (statutory or otherwise), of Pledgor, any such demand, notice and right or equity being hereby expressly waived and released. The Pledgee may, without further notice or publication, adjourn any public or private sale or cause the same to the Company, declare the principal amount of this Note be adjourned from time to time by announcement at the time outstandingand place fixed for the sale, and all other amounts payable under this Note such sale may be made at any time or place to which the sale may be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.so adjourned; and
(iv) the Pledgee may directly or indirectly acquire or retain the Pledged Collateral as permitted by applicable laws;
(c) The Company covenants that in case the Principal records of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Pledgee as to the Holder occurrence and continuation of this Notea Default or an Event of Default shall be prima facie evidence of such Default or Event of Default;
(d) The Pledgee shall not be bound under any circumstances to realize upon any Pledged Collateral or allow any Pledged Collateral to be sold, and shall not be responsible for any loss occasioned by any sale or by the retention of or refusal to sell Pledged Collateral; nor shall the Pledgee be obliged to collect or see to the payment of interest, distributions or dividends thereon;
(e) The proceeds of any sale or disposition of the Pledged Collateral by the Pledgee may be applied upon such part of the Obligations, direct or indirect, as the Pledgee may see fit;
(f) After the occurrence and during the continuance of a Default or an Event of Default, the whole amount Pledgee may transfer all or any of the Pledged Collateral and may fill in all blanks in any transfers of stocks or certificates or any power of attorney or other documents delivered to it, and the Pledgee may delegate its powers and any subdelegate of the powers hereby given may exercise the same in the name and on behalf of Xxxxxxx;
(g) At the request of the Pledgee, Pledgor will, at its own expense, execute all such transfers and documents as may be reasonably required, with all such powers of sale and other necessary powers as may be expedient for vesting in the Pledgee, or such person or nominee as it may appoint, all and every Pledged Collateral; and
(h) All reasonable costs and charges incurred by the Pledgee with reference to the Pledged Collateral or the realization thereof (including all reasonable legal costs on the basis as between a solicitor and his own client and court costs paid and also including expenses of taking possession of, protecting and realizing upon any property comprised in the Pledged Collateral) shall be added to the Obligations and shall be a first charge and security interest upon the monies received. Pledgor recognizes that, by reason of certain prohibitions contained in applicable securities laws, the Pledgee may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges that then any such private sales may be at prices and on terms less favourable to the Pledgee than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Pledgee shall have become due and payable on this Note for Principal. In case no obligation to engage in public sales, no obligation to ensure that the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity purchase price for the collection Pledged Collateral is the equal to the fair market value thereof and no obligation to delay the sale of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablePledged Collateral for any period of time.
Appears in 1 contract
Samples: Purchase Agreement (Adven Inc.)
Events of Default and Remedies. (a) Any one or more The occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):individually or collectively, herein called an "EVENT OF DEFAULT") under this Note:
(ia) The Company Maker shall fail to pay any of the principal of or any subsidiary accrued interest on this Note when due and such failure shall not be remedied within five days after the occurrence thereof; or
(Ab) Maker shall institute any proceeding (1) apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company liquidator of itself or any subsidiary of all or for any a substantial part of its propertyassets, (2) be adjudicated a bankrupt or shall consent to the commencement against insolvent or file a voluntary petition for bankruptcy or admit in writing that it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be is unable to pay its debts as such debts they become due, or shall admit in writing its inability to apply its debts generally; (C3) shall make a general assignment for the benefit of creditors; , (4) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy laws, or (D5) shall file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding, or take any corporate action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(iic) Any proceeding An order shall be instituted against the Company entered by any court of competent jurisdiction or other competent authority approving a petition seeking to adjudicate it a bankrupt reorganization of Maker or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of appointing a receiver, trustee, custodian or other similar official for the Company liquidator of Maker, or for any substantial part of all or substantially all of its propertyassets, and either such proceeding order, judgment or decree shall not have been dismissed or shall not have been stayed continue unstayed and in effect for a period of sixty (60) days 30 days. Upon or at any time after the occurrence of any Event of Default, the actions sought holder of this Note shall have and may exercise, at its election, from time to time any and all rights and remedies afforded by this Note, at law, in such proceeding (equity or otherwise, including, without limitation, the entry of any order for relief against it or the appointment of a receiver(a) exercising its rights under Section 4 hereof, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurif applicable; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice reducing any claim to the Company, declare the principal amount of this Note at the time outstanding, judgment; and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that bringing suit or other proceedings before any appropriate court either for specific performance of any covenant or condition contained in case the Principal this Note or in aid of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash exercise of any right granted herein to the Holder holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. (a) Any If any one or more of the following events which ("EVENTS OF DEFAULT") shall have occurred occur and be continuing shall constitute an event of default (“Event of Default”):continuing, to wit:
(ia) The Company Borrower shall fail to pay when due any amount of principal owing in respect of any of the indebtedness evidenced by this Note or any subsidiary other note or notes which may be given in renewal, substitution or extension of all or any part of such indebtedness (Aeach of which being an "OTHER NOTE"); or
(b) The Borrower shall institute fail to pay any part of the interest on this Note or any Other Note when due, whether at stated maturity, by acceleration, by notice of prepayment or otherwise, within five (5) Business Days after receipt of written notice from Lender of such failure; or
(c) The Borrower shall fail to comply with any covenants, agreement or condition contained in this Note within thirty (30) days after receipt of written notice from Lender of such failure; or
(d) Any representation or warranty made by the Borrower to the Lender herein or in any information provided hereunder shall be inaccurate or incomplete in any material respect when made; or
(e) The Borrower or any of its subsidiaries shall fail to pay any principal of or premium or interest on any of their indebtedness (but excluding indebtedness evidenced by this Note or by any Other Note), whether by scheduled maturity, required prepayment, acceleration, demand or otherwise, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such indebtedness; or any such indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; and, in each of the cases above, the principal amount of such indebtedness is at least $5,000,000; or
(f) The Borrower or any of its subsidiaries shall generally not pay its debts as the same become due, or shall admit in writing its inability to pay such debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or voluntary case against it seeking to adjudicate it as a bankrupt or an insolvent, or seeking dissolution, liquidation, winding up, reorganization, reorganization arrangement, adjustment, protection, relief relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property; and in the event of any proceeding being instituted against it, such proceeding shall remain undismissed or unstayed for a period of sixty (60) days or shall occurresult in the entry of an order for relief, the appointment of a trustee or receiver or other adverse result to it or it shall take any action to authorized any of the actions set forth above; or
(iiig) The Company One or more judgments or orders for the payment of money in an amount in excess of $5,000,000 in the aggregate shall fail to pay be rendered against the Borrower or any part of its subsidiaries and such judgments or orders shall continue unsatisfied and in effect for a period of sixty (60) consecutive days without being vacated, discharged, satisfied, or stayed or bonded pending appeal; then, and in any such event, the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder Lender may, without further by notice to the CompanyBorrower, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note Obligations to be forthwith due and payablepayable in full, whereupon such principal and all such amounts the Obligations shall become and be forthwith due and payable.
(c) The Company covenants payable in full, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower, PROVIDED, HOWEVER, that in case upon the Principal occurrence of any Event of Default of the Note becomes kind described in clause (f) above, the Obligations shall automatically become and be due and payable in full, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableBorrower.
Appears in 1 contract
Samples: Substitute Note (Coach Inc)
Events of Default and Remedies. (a) Any one or more 14.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (herein “Event Events of Default”):
(a) cessation of the business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and obligations of the Company;
(b) the failure of the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventany such proceeding, or seeking dissolution(iii) the commencement (x) by the Company’s subsidiaries, liquidationor any one of them, winding upof any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company’s subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company’s subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Company or CIT, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT’s satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.18 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of CIT, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) without the prior written consent of CIT and, except as permitted in the Subordination Agreement, the Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt;
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $250,000 (including Indebtedness with respect to the GMAC Loan);
(j) (i) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of a percentage of the stock of the Company having the right to vote for the election of members of the Board of Directors which is in excess of the percentage of such stock beneficially owned by UM Holdings, Ltd. and its Affiliates, (ii) a majority of the members of the Board of Directors do not constitute Continuing Directors, (iii) the Company ceases to own, directly or indirectly, and control 100% of the outstanding stock of each of its subsidiaries (other than the Inactive Subsidiaries) existing on the Closing Date, (iv) Xxxx Xxxxxxxxx ceases for any reason whatsoever (other than as a result of death or disability) to be actively engaged in the management of the Company or (v) UM Holdings, Ltd. and/or its Affiliates shall at any time collectively own less than 40% of the issued and outstanding voting stock of the Company;
(k) there shall remain in force, undischarged and unsatisfied for more than sixty (60) days, whether or not consecutive, without a stay of execution, any judgment against the Company or any of its subsidiaries that, with other outstanding final judgments, undischarged, against the Company or any of its subsidiaries exceeds in the aggregate $250,000.00;
(l) any Loan Document is invalidated or declared null and void or otherwise ceases to be in full force and effect;
(m) if at any time CIT’s security interest in the Collateral is impaired or invalidated or does not constitute a first priority perfected security interest (other than Permitted Encumbrances);
(n) if any license, permit or qualification material to the business of the Company and its subsidiaries, on a consolidated basis, is terminated, cancelled or invalidated; or
(o) if the validity or enforceability of any Loan Document is contested by the Company or if the Company denies liability thereunder.
14.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing
(a) all Obligations shall become immediately due and payable; (b) CIT may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause “(b)” CIT has given the Company written notice of the Event of Default, provided, however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c) of this Section 10, and (c) CIT may immediately terminate this Financing Agreement upon notice to the Company, provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by CIT. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
14.3 Immediately upon the occurrence of any Event of Default, CIT may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Company’s expense, such of the Company’s personnel, supplies or space at the Company’s places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or CIT; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT’s sole option and discretion, and CIT may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory and/or Other Collateral without judicial process, and to enter any premises where any Inventory and/or Other Collateral may be located for the purpose of taking possession of or removing the same and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. CIT shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale. If any Inventory shall require rebuilding, repairing, maintenance, finishing or preparation, CIT shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory in such saleable form as CIT shall deem appropriate. The Company agrees, at the request of CIT, to assemble the Inventory and to make it available to CIT at premises of the Company or elsewhere and to make available to CIT the premises and facilities of the Company for the purpose of CIT’s taking possession of, removing or putting the Inventory in saleable form, including finishing. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations, whether due or to become due, in such order as CIT may elect, and the Company shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies CIT and holds CIT harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to claims brought by the Company, declare the principal amount Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstanding, foregoing) have been finally and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that indefeasibly paid in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalfull. In case the Company shall fail forthwith to pay furtherance thereof CIT, may establish such amount, the Holder reserves for Obligations hereunder (including any contingent Obligations) as it may commence an action or proceeding at law or deem advisable in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableits reasonable business judgment.
Appears in 1 contract
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Lessee fails to pay any Rent when due under this Lease and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Lessee in the Lease or in any other Lease Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Lessee (A) fails to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Lease and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Lessee shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Lessee (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vi) Lessee fails to return the Equipment or fails to return the Equipment in the required condition at the expiration of the Term; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and any of its other creditors, (viii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and Lessor or any affiliate of Lessor; (ix) if Lessee’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in a Guaranty executed by any such Guarantor) shall occur; or (x) the owners of the capital stock or other units of ownership on the date of this Lease entitled to vote for the election of the board of directors of the Lessee or other similar governing body cease to own or do not have the unencumbered right to vote in the aggregate at least fifty percent (50%) of such capital stock or other ownership interest of Lessee.
(b) Upon the occurrence of an Event of Default, Lessor may exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred be exclusive) and shall be continuing shall constitute an event entitled to recover all its reasonable costs and expenses including incidental and consequential damages (as described in Section 2A-530 of default (“Event of Default”):the Uniform Commercial Code) and attorneys’ fees in enforcing its rights and remedies:
(i) The Company Lessee shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute or all of the Equipment at a location designated by Lessor; and/or to return promptly, at Lessee’s expense, any proceeding or voluntary case seeking all of the Equipment to adjudicate it bankrupt or insolventLessor at such location, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce condition and otherwise in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any accordance with all of the actions set forth above in this subsection 4(a)(i);terms of Section 14 hereof; and/or
(ii) Any proceeding shall Lessor may itself or by its agents enter upon the premises of Lessee or any other location where the Equipment is located and take possession of and render unusable by Lessee any or all of the Equipment, wherever it may be instituted against the Company seeking to adjudicate it a bankrupt or insolventlocated, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an without any court order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurpossession; orand/or
(iii) The Company shall fail to pay the Sell, re-lease or otherwise dispose of any part or all of the Principal when due hereunder;Equipment, whether or not in Lessor’s possession, at public or private sale with or without notice to Lessee, with the right of Lessor to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Lessee under this Lease, with Lessee remaining liable for any deficiency and with any excess being retained by Lessor, or retain any and all of the Equipment; and/or
(biv) If Cancel such Equipment Schedule as to any or all of the Equipment; and/or
(v) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Lessee to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lessor at law or in equity; and/or
(vi) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lessor or any affiliate of this Note at the time outstandingLessor, and all other amounts payable with respect to which Lessee has an interest, against any obligations of Lessee arising under this Note Lease or any other Lease Document, whether or not Lessee has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lessor in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that In addition to the foregoing, Lessee shall pay to Lessor on demand the sum of (i) any and all Rent which is then due or which has accrued to the date of demand and (ii) at Lessor’s option (A) an amount equal to the Stipulated Loss Value (as set forth in case the Principal related Equipment Schedule) as of the Note becomes Rent Payment Date on or immediately preceding the date of demand for the Items of Equipment as Lessor shall specify or (B) all Basic Rent and all other sums, including any tax indemnities becoming due as a result of such Event of Default, for the Term (including any mandatory Renewal Term) and payable by declaration or otherwise, then all amounts due upon the Company will pay in cash expiration of the Term including any return fees and/or any amounts due with respect to the Holder mandatory purchase of the Equipment becoming due under this Lease from the date of demand to the Expiration Date for such Items of Equipment plus the assumed residual value of such Equipment (as determined by Lessor). The Lessor and Lessee agree that Lessor shall be entitled to such amount as damages for loss of bargain and not as a penalty and that such amount is reasonable in light of the anticipated harm to Lessor caused by an Event of Default.
(d) If Lessee pays the full amount referred to in Section 16(c) to Lessor prior to the termination of this NoteLease as it relates to such Items of Equipment, title to the whole amount that then relevant Equipment shall have become due and payable on this Note for Principalimmediately vest in Lessee without representation or warranty by Lessor. In case the Company shall fail forthwith If Lessee fails to pay such amountamount and Lessor subsequently sells, releases or otherwise disposes of such Items of Equipment, the Holder may commence amount due from Lessee under Section 16(c) shall be reduced by an action amount equal to (i) the actual cash proceeds received and retained by Lessor upon any sale or proceeding disposition or (ii) if Lessor leases such Equipment by a lease agreement substantially similar to this Lease, the present value of the rents (discounted at law or the Prime Rate as announced by Fifth Third Bank and in equity effect at the time of demand plus 2.00%) payable under such subsequent Lease for the collection remaining Term of this Lease (without regard to any Renewal Terms other than the then current Renewal Term (if applicable)), in each case, net of all costs and expenses incurred in connection with such sale, disposition or lease including any incidental damages.
(e) A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, and only with respect to such Items of Equipment as Lessor specifically elects to cancel or terminate by such notice. Except as to any such Items of Equipment with respect to which there is a cancellation or termination, this Lease shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations under this Lease.
(f) Lessee shall indemnify, defend and hold Lessor harmless for any loss, personal injury (including death), or damage to property, suffered by Lessor, its employees or any of its agents in connection with its entry onto the premises of Lessee or any third party hereunder, except to the extent resulting from the gross negligence or willful misconduct of Lessor. Each of the sums so due rights and unpaidremedies of Lessor hereunder and under the other Lease Documents is in addition to all of its other rights and remedies hereunder, under the other Lease Documents and may prosecute under applicable law and nothing in this Lease or any other Lease Document shall be construed as limiting any such action right or proceeding remedy. Lessor’s failure to judgment exercise or final decree against Company delay in exercising any right, power or remedy available to Lessor shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lessor of any Event of Default shall not be a waiver by Lessor of any other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablesubsequent Events of Default.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more If any of the following events which shall have occurred occur and be continuing continuing: Table of Contents
(a) (i) Failure to pay any principal of any Loan when due in accordance with the terms hereof (including any payment required by Section 3.6) or (ii) failure to pay any interest on any Loan or any other amount payable hereunder or under any of the other Loan Documents, when such interest or other amount becomes due in accordance with the terms thereof or hereof, and in the case of this clause (ii), the same shall constitute an event remain unremedied for a period of three (3) Business Days; or
(b) Any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any other Loan Document shall prove to have been incorrect or misleading in any material respect when made or deemed to be made; or
(c) The Borrower shall default in the observance or performance of any covenant contained in any of Section 6.1(f), 6.4(i), 6.4(iii), 6.11, 6.12, 6.13 or Section 7 of the Agreement; or
(“Event d) The Borrower or any Guarantor shall default in the observance or performance of Default”):any other obligation applicable to it contained in this Agreement or any other Loan Document (other than as provided in paragraph (a), (b) or (c) of this Section 8.1), and such default shall continue unremedied for a period of thirty (30) days after the occurrence thereof; or
(i) The Company or any subsidiary Borrower shall (A) default in any payment of principal of or interest on any Indebtedness (other than the Loans or Indebtedness under Swap Contracts) or in the payment of any Guarantee Obligation, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created, if the aggregate amount of the Indebtedness and Guarantee Obligations of the Borrower in respect of which such default or defaults shall institute have occurred is at least $1,000,000; (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or such Guarantee Obligation (in each case involving the amounts specified in clause (A) above) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, the entirety of such Indebtedness to become due prior to its stated maturity (other than with respect to Indebtedness that is, by its terms, callable upon demand) or such Guarantee Obligation to become payable; or (C) default in the observance or performance of any obligation (payment or otherwise) under a Swap Contract that would allow the counterparty thereof to exercise a right to terminate its position under such Swap Contract, if the aggregate net exposure with regard to all such positions is in excess of $1,000,000 or (ii) any default shall occur in the observance or performance of any agreement or condition relating to the Hartree Credit Facility, and as a result of such default the requisite lenders under the Hartree Credit Facility have elected to cause the entirety of the Indebtedness evidenced by the Hartree Credit Facility to become due prior to its stated maturity or the administrative agent or collateral agent for the lenders thereunder shall have commenced exercising remedies against all or a substantial portion of the collateral securing the Hartree Credit Facility, and such acceleration or exercise of remedies has not been rescinded; or
(i) The Borrower, SRLP, SRLPGP or any Guarantor shall commence any case, proceeding or voluntary case seeking other action (A) under any existing or future Law of any jurisdiction, domestic or foreign, relating to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolution, liquidation, winding upinsolvency, reorganization, arrangement, adjustmentliquidation, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization winding-up or relief of debtors, or seeking the entry of any to have an order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its propertyentered with respect to it, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protectionwinding-up, liquidation, dissolution, composition or other relief of debtorswith respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower, SRLP, SRLPGP or any Guarantor shall make a general assignment for the benefit of its creditors; Table of Contents or (ii) there shall be commenced against the Borrower or any Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or the any such adjudication or appointment of a receiveror (B) remains undismissed, trustee, custodian undischarged or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed unbonded for a period of sixty (60) days days; or (iii) there shall be commenced against the Borrower, SRLP, SRLPGP or any of the actions sought in such Guarantor any case, proceeding (including, without limitation, the entry of any order for relief against it or the appointment other action seeking issuance of a receiverwarrant of attachment, trusteeexecution, custodian distraint or other similar official for it process against all or for any substantial part of its propertyassets which results in the entry of an order for any such relief with regard to all or any substantial part of its assets, which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) the Borrower, SRLP, SRLPGP or any Guarantor shall occurtake any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower, SRLP, SRLPGP or any Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(i) the Borrower or any Guarantor that is a fiduciary, party-in-interest or disqualified person with respect to a Plan shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan; (ii) any failure to satisfy the minimum funding requirements of Section 412 or 430 of the Code, whether or not waived, shall occur with respect to any Single Employer Plan, a Single Employer Plan shall be determined to be “at risk” status within the meaning of Section 430 of the Code or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly Controlled Entity; (iii) The Company a Reportable Event shall fail occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA; (iv) any Single Employer Plan shall terminate pursuant to Section 4041(c) or 4042 of ERISA; (v) the Borrower or any Commonly Controlled Entity incur any liability in connection with a complete or partial withdrawal from, or the Insolvency or termination of, a Multiemployer Plan or a determination that any Multiemployer Plan is or is expected to be endangered, seriously endangered or in critical status, in each case within the meaning of Section 431 or 432 of the Code or Section 304 or 305 of ERISA, or the Borrower or any Commonly Controlled Entity fails to make any required contributions to a Multiemployer Plan pursuant to Section 431 or 432 of the Code; (vi) the failure of any Single Employer Plan to comply with any material provisions of ERISA and the Code (and applicable regulations under either) or with the material terms of such Single Employer Plan; (vii) the failure by the Borrower or any of its Commonly Controlled Entities to pay when due (after expiration of any applicable grace period) any installment payment with respect to Withdrawal Liability under Section 4201 of ERISA; (viii) the withdrawal by the Borrower or any of their respective Commonly Controlled Entities from any Single Employer Plan with two or more contributing sponsors or the termination of any such Single Employer Plan resulting in liability to the Borrower or any of their respective Commonly Controlled Entities pursuant to Section 4063 or 4064 of ERISA; (ix) the imposition of liability on the Borrower or any of its Commonly Controlled Entities pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (x) the occurrence of an act or omission which would give rise to the imposition on the Borrower or any of its Commonly Controlled Entities of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Single Employer Plan; (xi) the assertion of a material claim (other than routine claims for benefits) against any Single Employer Plan or the assets thereof, or against the Borrower or any of its Commonly Controlled Entities in connection with any Plan; (xii) receipt from the IRS of notice of the failure of any Single Employer Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Single Employer Plan (or any other Plan) to qualify for exemption from taxation under Section 501(a) of the Principal when due hereunder;
Code; (bxiii) If an Event the imposition of Default described above has occurreda Lien pursuant to Section 430(k) of the Code or pursuant to ERISA with respect to any Single Employer Plan; and in each case in clauses (i) through (xiii) above, then the Holder maysuch event or condition, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and together with all other amounts payable under this Note such events or conditions, if any, would reasonably be expected to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.a Material Adverse Effect; or
Appears in 1 contract
Events of Default and Remedies. 9.1. Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred and be continuing shall constitute an event business of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or the calling of a general meeting of the creditors of the Company for purposes of compromising the debts and obligations of the Company;
(b) any subsidiary of Gart, Sportmart or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit Xxxxxx'x admits in writing its inability to apply generally pay its debts generally; as they mature;
(Cc) the commencement by any of Gart, Sportmart or Xxxxxx'x of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against any of Gart, Sportmart or Xxxxxx'x of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law provided, however, that such Default shall make not be deemed an Event of Default if the proceeding, petition, case or arrangement is dismissed within thirty (30) days of the filing of, or the commencement of, such petition, case, proceeding or arrangement;
(e) material breach by the Company of any warranty, representation (representations and warranties referred to in this subparagraph e shall be deemed made as of each (i) Reporting Date, whether or not any report is in fact given to the Agent or (ii) request for a general assignment Revolving Loan or (iii) request for the benefit Agent's assistance in obtaining a Letter of creditors; Credit or (Div) shall take the posting of any action Obligation to authorize the loan account) or effect any covenant contained herein (other than those otherwise referred to in this Section 9) or in any agreement --------- between the Company and the Agent relating to this Financing Agreement, provided that such Default by the Company of any of the actions set forth above warranties, representations or covenants referred to in this subsection 4(a)(i);
clause (iie) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed be deemed to be an Event of Default unless and until such Default shall remain unwaived or shall not have been stayed unremedied to the Agent's reasonable satisfaction for a period of sixty thirty (6030) days or any from the date of the actions sought in Agent's written notice to the Company of such proceeding breach;
(including, without limitation, f) breach by the entry Company of any order for relief against it warranty, representation or covenant of: (i) the appointment first sentence of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurSection 3.3; or
; (ii) Section 3.4 or ----------- ----------- (iii) The Company shall fail Section 5.3; or iv) Section 6.4 (only as it relates to pay insurance on the any part of the Principal when due hereunder;
(b----------- ----------- Inventory) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Section 6.5; or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.v)
Appears in 1 contract
Samples: Financing Agreement (Gart Sports Co)
Events of Default and Remedies. 3.1 Remedies in Case of an Event of Default. If an Event of Default shall have occurred and be continuing, Holder may, but shall not be obligated to, in addition to any other action permitted by law (a) Any and not limited in any manner by the remedies contained in the Notes, the Indenture and the Additional Indebtedness Instruments), take one or more of the following events which shall have occurred actions, all subject to the Indenture and/or such restrictions as are contained in the applicable Intercreditor Agreements:
(a) by written notice to Debtor, declare any principal sum, interest and other amounts hereby secured to be continuing shall constitute an event of default due and payable immediately;
(“Event of Default”):
b) personally, or by its agents or attorneys, (i) The Company enter into and upon all or any subsidiary part of the Mortgaged Property and exclude Debtor, its agents and servants wholly therefrom, (Aii) shall institute any proceeding use, operate, manage and control the Premises and the Equipment and conduct the business thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or voluntary case seeking to adjudicate it bankrupt proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Holder may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the business thereof and exercise all rights and powers of Debtor with respect thereto either in the name of Debtor or insolventotherwise, or seeking dissolution(vi) collect and receive all earnings, liquidationrevenues, winding uprents, reorganizationissues, arrangementprofits and income of the Mortgaged Property and any or every part thereof;
(c) with or without entry, adjustmentpersonally or by its agents or attorneys, protection(i) sell the Mortgaged Property and all estate, relief right, title and interest, claim and demand therein at one or composition more sales in one or more parcels, in accordance with the provisions of it Section 3.2 or its debts under (ii) institute and prosecute proceedings for the complete or partial foreclosure of the Lien and security interests created and evidenced hereby;
(d) by instrument in writing appoint any law person to be a receiver (which term shall include a receiver and manager) of the Mortgaged Property or of any part thereof and may remove any receiver so appointed and appoint another in his stead; and except as may be otherwise directed by Holder, all moneys from time to time received by any such receiver shall be received in trust for and paid over to Holder; and any such receiver so appointed shall have power:
(1) to take possession of the Mortgaged Property or any part thereof;
(2) to carry on all or any part of the business of Debtor relating to bankruptcythe Mortgaged Property;
(3) to borrow money on the security of the Mortgaged Property in priority to this Debenture for the purpose of the maintenance, insolvency preservation or reorganization protection of the Mortgaged Property or relief any part thereof or for carrying on all or any part of debtorsthe business of Debtor relating to the Mortgaged Property; and
(4) to sell, lease or seeking otherwise dispose of the entry whole or any part of the Mortgaged Property at public auction, by public tender or by private sale, either for cash or upon credit, at such time and upon such terms and conditions as the receiver shall determine; provided, however, that any such receiver shall be deemed the agent of Debtor and Holder shall not be in any way responsible for any misconduct or negligence of any order such receiver;
(e) exercise any of the other rights to which Holder is entitled as holder of this Debenture, including the right to take proceedings in any court of competent jurisdiction for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company sale of the Mortgaged Property or any subsidiary part thereof or for foreclosure, and the right to take any substantial part of its propertyother action, or shall consent to the commencement against it of such a proceeding or casesuit, or shall file an answer in any such case remedy or proceeding commenced against it consenting authorized or permitted thereunder or by law or by equity in order to or acquiescing in enforce the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in security constituted by this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurDebenture; or
(iiif) The Company shall fail take such steps to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredprotect and enforce its rights whether by action, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action suit or proceeding at law or in equity for the collection specific performance of any covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the sums so due and unpaidexecution of any power granted in this Debenture, and may prosecute or for any such action foreclosure hereunder, or proceeding to judgment for the enforcement of any other appropriate legal or final decree against Company equitable remedy or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableotherwise as Holder shall elect.
Appears in 1 contract
Samples: Fixed and Floating Charge Debenture (Seven Seas Steamship Co Nv)
