Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows: (a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower. (b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default. (c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations. (d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender. (e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days. (f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days. (g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect. (h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement. 9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower: (a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1 (a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 8 contracts
Samples: Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The Each of the following events shall constitute constitutes an "Event of Default" under this Agreement, Default with respect to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsSecurities if:
(a1) Failure to pay the principal Company defaults for 30 days in the payment when due of interest on, or interest on Liquidated Damages with respect to, the Borrower's present or future indebtedness to the Lender, Securities (whether or not arising pursuant to this Agreementprohibited by the provisions of Article X);
(2) the Company defaults in payment when due of the principal of or premium, when and as if any, on the same shall be due and payable, Securities (whether or not prohibited by acceleration or otherwise; provided that such default has not been cured prior to the expiration provisions of ten Article X);
(103) the Company fails for 30 days following the date upon which the Lender gives the Borrower written Notice after receipt of Default. In this Section 9, a Notice of Default shall be deemed to have been given comply with the provisions in Sections 4.03, 4.04, 4.06, 4.08 and 5.01;
(i4) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges Company fails for 60 days after receipt of a Notice of Default specifying such written notice, or (iii) on the day after sending such written notice failure to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of its other agreements in this Indenture or the obligations evidenced Securities;
(5) the Company or secured any Restricted Subsidiary that is a Significant Subsidiary fails to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a Loan Document, other than as provided default if the total amount of such Debt unpaid or accelerated at the time exceeds $15.0 million;
(6) any judgment or decree for the payment of money in Sections 9.1(a) above; provided that such default has not been cured excess of $15.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the expiration entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) shall be entered against the Company or any Significant Subsidiary that is a Restricted Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there shall be a period of thirty (30) 90 days following the date upon entry of such judgment or decree during which such judgment or decree is not discharged, waived or the Lender gives the Borrower written Notice of Default.execution thereof stayed;
(c7) Failure to duly and punctually payexcept as permitted by this Indenture, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same Security Guarantee by a Guarantor that is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy a Significant Subsidiary shall be held in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or judicial proceeding to be delivered by unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(8) the Borrower Company or any Restricted Subsidiary that is a Significant Subsidiary pursuant to this Agreement, which inaccuracy would result in or within the meaning of any Bankruptcy Law:
(A) commences a Material Adverse Effect voluntary case;
(except that inaccuracies in the Borrower's Due Diligence Documents attributable B) consents to the fault or neglect entry of third-parties shall not constitute a breach of this Section 9.1(d)), or an order for relief against it in any other Loan Document, or in any other agreement between the Borrower and the Lender.an involuntary case;
(eC) The filing consents to the appointment of a petition by Custodian of it or against the Borrower or for any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.substantial part of its property;
(fD) The commencement of makes a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, the appointment of a receiver, ; or takes any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.comparable action under any foreign laws relating to insolvency; or
(g9) The garnishment, attachment, levy a court of competent jurisdiction enters an order or other similar action taken by or on behalf of decree under any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the BorrowerBankruptcy Law that:
(aA) upon is for relief against the occurrence Company or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding-up or liquidation of the Company or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and continuance the order or decree relating thereto remains unstayed and in effect for 60 days: The foregoing shall constitute Events of Default whatever the reason for any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.governmental body.
Appears in 4 contracts
Samples: Indenture (Harborside Healthcare Corp), Indenture (Sailors Inc), Indenture (Harborside Healthcare Corp)
Events of Default and Remedies. 9.1 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 shall constitute an (herein called "Event Events of Default" under this Agreement") 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 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be 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;
(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 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; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute 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 breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) 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 statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or 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 their respective properties which could have a Material Adverse Effect.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;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall 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 for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote 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 in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, 8.3. No remedy herein conferred upon the holder hereof 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 given hereunder or now or hereafter existing at its option, terminate its obligation to make advances law or in equity or by statute or otherwise.
8.4. No course of dealing between the Maker and the holder hereof or any delay on the part of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance holder hereof in exercising any rights hereunder shall operate as a waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance rights of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.holder hereof.
Appears in 4 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. 9.1 6.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
6.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss6.3. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder, the Administrative Agent, in its discretion, may sell, assign, transfer and deliver any of the Collateral, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any securities exchange, over-the-counter market or other recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of Xxxxx X.redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as the Administrative Agent in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, the Administrative Agent shall at all times have the right to obtain new appraisals of the Pledgor or the Collateral, the cost of which shall be paid by the Pledgor.
Appears in 4 contracts
Samples: Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon fifteen (ii15) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting the Grantor’s liability under this Agreement or the Notes. The Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultGrantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless 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 same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsGrantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement Event of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsDefault, the appointment of Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a receiver, place or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) places to be designated by the Collateral Agent The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 3 contracts
Samples: Security Agreement (Thompson Designs Inc), Security Agreement (Gelia Group, Corp.), Subscription Agreement (Codesmart Holdings, Inc.)
Events of Default and Remedies. 9.1 SECTION 3.1. Remedies in Case of an Occurrence of an Event of Default The following events occurrence of any event, or the existence of any condition, that is specified as an "Event of Default" under the Indenture or any other Security Document shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwisehereunder. The Occurrence of an An Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to occur if the Collateral Agent should receive at any time following the closing of the transaction a Secretary of State's Report indicating that the Collateral Agent's security interest is not prior to all other security interests or other interests reflected in the report, other than Permitted Collateral Liens. If an Event of Default shall have been given occurred and be continuing, Mortgagee may, but shall not be obligated to, in addition to any other action permitted by law (and not limited in any manner by the remedies contained in the Notes and the Indenture), take one or more of the following actions, to the greatest extent permitted by applicable local law:
3.1.1 By written notice to Mortgagor, the Mortgagee may, and shall, upon the request of the holders of not less than 25% in aggregate principal amount of the outstanding Notes, declare the principal of and accrued interest on, all the Secured Obligations to be due and payable immediately;
3.1.2 Personally, or by its agents or attorneys, (i) enter into and upon all or any part of the Mortgaged Property and exclude Mortgagor, its agents and servants wholly therefrom, (ii) use, operate, manage and control the Premises, the Real Estate Fixtures and the Equipment and conduct the business thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Mortgagee may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the date business thereof and exercise all rights and powers of personal delivery Mortgagor with respect thereto either in the name of such written notice to a GuarantorMortgagor or otherwise, or (vi) collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and any or every part thereof;
3.1.3 With or without entry, personally or by its agents or attorneys, (i) sell the Mortgaged Property and all estate, right, title and interest, claim and demand therein at one or more sales in one or more parcels, in accordance with the provisions of Section 3.2 or (ii) on institute and prosecute proceedings for the date on which a duly authorized representative complete or partial foreclosure of the Borrower acknowledges receipt Lien and security interests created and evidenced hereby; or
3.1.4 Take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of such written noticeany covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the execution of any power granted in this Mortgage, or (iii) on for any foreclosure hereunder, or for the day after sending such written notice enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. Notwithstanding anything to the Borrower contrary in this Mortgage, if Mortgagor is in breach of a covenant, obligation or representation qualified by a commonly recognized overnight courier serviceMaterial Adverse Effect, then (i) if such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice breach is due to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any existence of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
type referred to in clause (hi) Any change in control of the Borrowerdefinition of such term, Madison Liquidity Investors 104, MACG from that disclosed then Mortgagee shall be entitled to those remedies set forth in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) Article III upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default resulting from such breach, and (ii) if such breach is due to the existence of a Material Adverse Effect of the type referred to in clause (ii) of the definition of such term, then (x) Mortgagee's remedies under this Mortgage shall be limited to an action for specific performance with respect to the performance of such covenant or obligation and (Cy) upon the death or disability such breach shall be deemed not to be and not to give rise to an Event of Xxxxx X.Default.
Appears in 3 contracts
Samples: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp)
Events of Default and Remedies. 9.1 The following events Securities shall constitute have the Events of Default as set forth in Section 5.01 of the Indenture. Subject to certain limitations in the Indenture, if an "Event of Default occurs and is continuing, the Trustee by notice to the Company or the holders of at least 25% in aggregate principal amount of the Outstanding Securities by notice to the Company and the Trustee may declare all amounts payable on the Securities (including any Additional Payments) to be due and payable immediately; provided that, if the Property Trustee is the sole Holder of the Security and if upon an Event of Default" under this Agreement, the occurrence Trustee or the holder of which shall entitle not less than 25% in aggregate principal amount of the Lender then outstanding Securities fail to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay declare the principal or interest on of all the Borrower's present or future indebtedness Securities to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be immediately due and payable, whether the holders of at least 25% in aggregate liquidation amount of Preferred Securities then outstanding shall have such right by acceleration or otherwise; provided that such default has not been cured prior a notice in writing to the expiration Company and the Trustee; and upon any such declaration such principal and all accrued interest shall become immediately due and payable; and provided further that the payment of ten (10) days following principal and interest on such Securities shall remain subordinated to the date upon which extent provided in the Lender gives Indenture. In the Borrower written Notice case of an Event of Default. In this Section 9, Notice the holders of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative majority in principal amount of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such Outstanding Securities by written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration. Holders may not enforce the Indenture or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than Securities except as provided in Sections 9.1(a) above; provided that such default has not been cured prior the Indenture. Subject to certain limitations, holders of a majority in principal amount of the then outstanding Securities issued under the Indenture may direct the Trustee in its exercise of any trust or power. The Company must furnish annually compliance certificates to the expiration Trustee. The above description of thirty (30) days following Events of Default and remedies is qualified by reference to, and subject in its entirety by, the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower more complete description thereof contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderIndenture.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 3 contracts
Samples: Indenture (Carriage Services Inc), Indenture (Chemed Corp), Indenture (Chemed Capital Trust)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute be deemed an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) Buyer's failure to make any payment required hereunder on the date of personal delivery of such written notice to a Guarantor, or payment is due;
(ii) on Buyer's failure to accept the Vessel within fourteen (14) days from the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or Vessel is tendered for delivery;
(iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or Buyer's material breach of any of his other obligations under this Agreement; or
(iv) on the third day after sending Buyer shall become insolvent or generally not pay his debts as such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))become due, or shall admit in any other Loan Documentwriting his insolvency or his inability to pay his debts generally, or in any other agreement between the Borrower and the Lender.
(e) The filing of shall make a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors, the appointment of a receiver, ; or any other similar law proceeding shall be instituted by or regulation, whether federal, state against him seeking to adjudicate hire as bankrupt or local, not dismissed within 30 daysinsolvent.
(gb) The garnishmentShould an Event of Default occur, attachmentBuilder shall have, levy or other similar action taken by or on behalf in addition to the right to charge interest and case work in accordance with the terms of any creditor Section 4 hereof, the right to terminate this Agreement and dispose of the Borrower, any Affiliate, or any Vessel in accordance with the terms of their respective properties which could have a Material Adverse EffectSection 13(c) below and all other remedies permitted by law.
(hc) Any change in control In the event that an Event of the BorrowerDefault occurs and continues for a period of fifteen (15) days, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of Builder may terminate this Agreement.
9.2 The Lender Agreement by written notice to Buyer and may, at its optionsole discretion, terminate its obligation to make advances either complete the Vessel and sell the same, or sell the Vessel "as is," free of any right or claim of Buyer. Such sale of the LoanVessel by Builder shall be either by public auction or private contract at Builder's sole discretion at such price and on such other terms and conditions as Builder shall deem fit. In the event of such sale of the Vessel, without notice the amount of the sale proceeds received by Builder shall be applied firstly to all expenses attending such sale (including, but not limited to, the cost of preparing, completing and marketing the Vessel and reasonable attorneys' fees) or otherwise incurred by tape Builder as a result of Buyer's default, secondly to the Borrower:payment of all costs and expenses of construction of the Vessel incurred by Builder less the installments, Additional Labor Charges and Additional Materials Charges already paid by Buyer and the compensation to Builder for any reasonable losses due to rescission of this Contract, plus accrued interest on all such amounts at eighteen percent (18%) per annum, and finally to the repayment of Buyer without interest, if any balance remains. If the proceeds of sale are insufficient to pay such total costs and any reasonable losses as aforesaid, Buyer shall promptly pay the deficiency to the Builder upon request.
(ad) upon In addition to the foregoing, Buyer shall be liable for all legal fees and other costs and expenses incurred by Builder by reason of the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance exercise of any event which, Builder's remedies with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.respect thereto.
Appears in 3 contracts
Samples: Vessel Construction Agreement (Lighthouse Landings Inc), Vessel Construction Agreement (Lighthouse Fast Ferry Inc), Vessel Construction Agreement (Lighthouse Fast Ferry Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event In the event Lessee or any guarantor of Default" Lessee’s obligation under this Agreement, the occurrence of which Lease shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure fail to pay the principal make any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as other payment due hereunder within ten days after the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorbecome due, or (iib) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeadmit its inability to pay its debts, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of its creditors, or (d) have its leasehold estate taken upon execution or other process of law against, Lessee, except eminent domain, or (e) abandon the appointment Premises during the Term hereof, or (f) have any receiver appointed in any proceeding commenced against it based upon its insolvency and if such receiver is not discharged within ninety (90) days after appointment, or (g) breach or fail to perform any of a receiverthe material agreements, covenants and/or provisions herein or comply with any applicable rule or regulation pertaining to the Building or the Project, other than the agreement to pay rental or any other payment due hereunder, and Lessee fails to use its best efforts to cure such breach or failure within fifteen days after written notice from Lessor, or (h) any proceedings are filed against Lessee or any guarantor of this lease under the Bankruptcy Code or any similar law provisions of any future federal bankruptcy law, or regulation(i) fail to vacate the Premises immediately upon the expiration of the Term or the earlier termination of this Lease, whether federalby lapse of time or otherwise; then Lessor, state in any such event(s), shall have the option to:
(I) Sue for rents as they become due;
(II) Terminate this Lease, resume possession of the Premises (together with all additions, alterations, fixtures and improvements thereto) for its own account and recover immediately from Lessee any and all sums and damages for violation of Lessee’s obligations hereunder in existence or localdue at the time of termination and damages for Lxxxxx’s default in an amount equal to the difference between the Rent for which provision is made in this Lease and fair rental value of the Premises for the remainder of the Lease term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by Lxxxxx, all actual and verifiable costs and expenses of Lessor in connection with any attempts to re-lease or relet the Premises (including, but not dismissed within 30 dayslimited to, broker’s fees, advertising costs and cleaning expenses), the costs of recovering the Premises, and the costs of repairs and renovations reasonably necessary in connection with any re-leasing or reletting.
(gIII) The garnishmentResume possession and re-lease or re-rent the Premises for the remainder of the Lease term for the account of Lessee and recover from Lessee at the end of the Lease term or at the time each payment of rent becomes due under this Lease (adjusted to present value), attachmentas the Lessor may elect, levy the difference between the rent for which provision is made in this Lease and the rent received on the releasing or re-renting, together with all costs and expenses of Lessor in connection with such re-leasing or re-rental and collection of rent and the cost of all repairs or renovations reasonably necessary in connection with the re-leasing or re-rental, and if this option is exercised, Lessor shall, in addition, be entitled to recover from Lessee immediately any other similar action taken damages occasioned by or resulting from the abandonment or a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and Operating Costs for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses to be paid by Lessee hereunder, including but not limited to damages for violation of Lxxxxx’s obligations hereunder in existence at the time of acceleration, so that all sums due and payable under this Lease will be treated as payable in advance on behalf the date of acceleration and this Lease will remain in effect. For the purposes of determining the amount due upon acceleration, Rent, Additional Rent and Lxxxxx’s pro rata share of Operating Costs shall be treated as fixed at the levels in effect on the date of acceleration for the remaining term of this Lease; but to the extent required by law, the total amount so accelerated will be reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without being liable for prosecution or any claim for damages therefore (whether caused by the negligence of Lessor or otherwise), and do whatever Lessee is obligated to do under the terms of this Lease, in which event Lessee shall reimburse Lessor on demand for any expenses which Lessor may incur in thus effecting compliance with the terms of this Lease. Notwithstanding the foregoing, with respect to re-lease or re-renting the Premises, Lessor and Lessee agree that Lessor shall only be required to use the same efforts Lessor then uses to lease other properties Lessor owns or manages (or if the Premises is then managed for Lessor, then Lessor shall instruct such manager to use the same efforts such manager then uses to lease other space or properties which its owns or manages); provided, however, that Lessor (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Lessor (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Lessor shall not be required to observe any instruction given by Lessee about such re-letting or accept any tenant unless such offered tenant has a creditworthiness acceptable to Lessor, leases the entire Premises, agrees to use the Premises in a manner consistent with the Lease, and leases the Premises at the same or greater rent, for no more than the current term and on the same terms and conditions of this Lease without the expenditure by lessor for tenant improvements or broker’s commissions. The remedies for which provision is made in this Article shall not be exclusive and in addition thereto Lessor may pursue such other remedies as are now or hereinafter provided by law, equity or statue in the event of any creditor of the Borrowerbreach, any Affiliate, default or any of their respective properties which could have a Material Adverse Effectabandonment by Lxxxxx.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 3 contracts
Samples: Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon twenty (ii20) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agent 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting each Grantor’s liability under this Agreement or the Notes. Each Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulteach Grantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness take possession and control thereof without demand or other obligationsnotice and without prior judicial hearing or legal proceedings, which each Grantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing of a petition by or against Upon the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf occurrence of any creditor Event of Default, each Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a place or places to be designated by the Collateral Agent. The rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 3 contracts
Samples: Security Agreement (Rackwise, Inc.), Security Agreement (Boldface Group, Inc.), Security Agreement (Boldface Group, Inc.)
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 3 contracts
Samples: Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 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 shall constitute an (herein called "Event Events of Default" under this Agreement") 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 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be 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;
(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 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; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute 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 breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) 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 statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or 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 their respective properties which could have a Material Adverse Effect.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;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall 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 for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote 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 in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) 8.3. No remedy herein conferred upon the occurrence and continuance holder hereof is intended to be exclusive of any Event of Default set forth other remedy and each and every such remedy shall be cumulative and shall be in subsections 9.1
(a) through 9.1(h) above; addition to every other remedy given hereunder or (b) upon the occurrence and continuance of any event which, with the giving of notice now or the lapse of time, hereafter existing at law or both, would constitute an Event of Default in equity or (C) upon the death by statute or disability of Xxxxx X.otherwise.
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. 9.1 The following events shall constitute an "Event (1) In the event of Default" under any breach or default by any party (a “Defaulting Party”) in any of its obligations or representations contained in this Agreement, the occurrence non-defaulting party shall give written notice of such breach or default to the Defaulting Party. Such a Notice (a “Default Notice”) shall state with particularity the breach or default on which shall entitle the Lender notice is based and request the Defaulting Party to pursue remedy or cure the breach or default within the following periods (a “Remedy Period”): (i) if the breach or default occurs on or before July 31, 2004 the Remedy Period is 30 days after receipt of the Default Notice; and (ii) if the breach or default occurs after July 31, 2004 the Remedy Period is 60 days after receipt of the Default Notice.
(2) During the applicable Remedy Period the parties will use all reasonable efforts to resolve amicably the breach or default by negotiations in good faith. However, any and all rights and remedies, legal and equitable, available to it breach or default which is not remedied or cured or resolved by negotiations in good faith within the applicable Remedy Period will constitute an event of default under any Loan Document or otherwise. The Occurrence this Agreement (hereafter: Event of Default).
(3) Upon the happening of an Event of Default under this Agreement by Seller, the Buyer shall constitute be entitled to a default under each reduction in the purchase price paid for the Shares and/or the PMMA Business and every other Loan DocumentAssets, as the case may be, in accordance with §§ 437 Nx. 0, 000 XXX (Xxxxxx Civil Code) or refund of the purchase price paid in excess. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party Buyer shall not serve be entitled to release withhold payment (right of retention) in respect of any instalment of the purchase price or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given part thereof except (i) on with the date prior written consent of personal delivery of such written notice to a GuarantorSeller, or (ii) on the date on which upon ascertainment of an Event of Default by Seller by final decision of a duly authorized representative court of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowercompetent jurisdiction.
(b4) Failure The parties are agreed that the representations of Seller contained in Article C of this Agreement, including the Schedule of Additional Representation attached to observethis Agreement as Exhibit F , perform do not constitute guarantees of quality within the meaning of § 400 XXX (Xxxxxx Civil Code) but are to be regarded as “Beschaffenheitsmerkmale.”
(5) The Seller shall be liable solely in accordance with the regulations of this Agreement, save in the case of fraud or intentional misrepresentation. The right to rescind, save in the case of fraud or intentional misrepresentation, and comply with any of the obligations evidenced right to improvement or secured by a Loan Documentsubsequent performance under §§ 437 Nx. 0, other than as provided in Sections 9.1(a000 XXX (Xxxxxx Civil Code) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultare expressly excluded.
(c6) Failure Upon the happening of an Event of Default by the Buyer, the Seller shall be entitled to duly exercise all rights and punctually payremedies to which it may be entitled according to German law and this Agreement including, observe if applicable, its rights and discharge all Indebtedness remedies under the Assignment Agreement and other obligations of Security Agreement attached to this Agreement as, respectively, Exhibit G and Exhibit H, and its rights and remedies under the Borrower Pledge Agreement attached to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.this Agreement as Exhibit I.
(d7) The discovery by the Lender of any material inaccuracy All claims arising from or in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in connection with this Agreement or in any document delivered or to be delivered by or on behalf shall become time-barred two years after the date of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 signature of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Purchase Agreement (Artes Medical Inc), Purchase Agreement (Artes Medical Inc)
Events of Default and Remedies. 9.1 a) The following events shall constitute an "Event of Default" ” by the Debtors hereunder:
(1) An Event of Default (as defined therein) shall occur under any of the Debentures after giving effect to any applicable notice provision and cure period provided for therein;
(2) Failure by the Debtors to comply with or perform any obligation secured by the Permitted Encumbrances after giving effect to any applicable notice provision and cure period provided therein;
(3) Failure by the Debtors to comply with or perform any provision of this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall such failure is not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of remedied within thirty (30) days following after the date upon which the Lender gives the Borrower Debtors’ receipt of written Notice notice of Default.same;
(c4) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations Any representation of the Borrower Debtors set forth herein shall have been false or misleading in any material respect when made; or
(5) Subjection of any of the Collateral with an aggregate value in excess of $50,000 to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness levy of execution or other obligations.judicial process,
(db) The discovery Upon any default by the Lender of any material inaccuracy in any statementDebtors hereunder, assurancethe Agent, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant Lenders, subject to this the terms of the Subordination Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies shall have all the rights, remedies and privileges with respect to repossession, retention and sale of any or all of the Collateral of the Debtors and disposition of the proceeds as are accorded by the applicable sections of the Uniform Commercial Code.
c) Upon any default by the Debtors hereunder and upon demand of the Agent, the Debtors shall assemble the Collateral and make it available to the Agent at the place and at the time designated in the Borrower's Due Diligence Documents attributable demand.
d) If the Debtors shall default in the performance of any of the provisions of this Agreement on the Debtors part to be performed, the Agent may perform same for the Debtors’ account. Any monies expended in so doing and the reasonable attorneys' fees and the legal and other expenses for pursuing, searching for, receiving, taking, keeping, storing, advertising for the sale of and selling the Collateral incurred by the Agent, shall be chargeable with interest to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Debtors and added to the Obligations owed to the Lenders that are secured hereby, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of ratably according to their respective properties which could have a Material Adverse EffectLoan Percentage.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Subordinated Convertible Debenture Purchase Agreement (Miscor Group, Ltd.), Security Agreement (Miscor Group, Ltd.)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault with respect to the Notes shall occur and be continuing, the occurrence principal of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and Notes may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party declared, and in certain cases shall not serve to release or discharge any other securityautomatically become, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwisepayable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such default Indebtedness, together with the principal amount of any other such Indebtedness under which there has not been cured prior a Payment Default or the maturity of which has been so accelerated, aggregates to $50,000,000 or more. As provided in and subject to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative provisions of the Borrower acknowledges receipt Indenture, the Holder of such written notice, or (iii) on this Note shall not have the day after sending such written notice right to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with institute any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves proceeding with respect to such Indebtedness the Indenture or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver or trustee or for any other similar law or regulationremedy thereunder, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf unless such Holder shall have previously given the Trustee written notice of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any continuing Event of Default set forth with respect to the Notes, the Holders of not less than 25% in subsections 9.1
(a) through 9.1(h) above; or (b) upon principal amount of the occurrence and continuance Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of any event which, with the giving of notice or the lapse of time, or both, would constitute an such Event of Default and the Holders offered the Trustee and, if requested, provided security or (C) upon indemnity reasonably satisfactory to the death Trustee against any loss, liability or disability expense and the Trustee shall not have received from the Holders of Xxxxx X.a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Appears in 2 contracts
Samples: Senior Notes Agreement (Flowers Foods Inc), Senior Notes Agreement (Flowers Foods Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Events of Default include: (i) default for 30 days in the payment when due of interest on, or Liquidated Damages, if any, with respect to, the Notes (whether or not prohibited by Article 10 of the Indenture); (ii) default in payment when due (whether payable at maturity, upon redemption or repurchase or otherwise) of principal of or premium, if any, on the Notes (whether or not prohibited by Article 10 of the Indenture). If any Event of Default" under this AgreementDefault occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in principal amount of the Lender to pursue any then outstanding Notes may declare all the Notes and all rights other Obligations thereunder to be due and remediespayable by notice in writing to the Company and the Trustee. Notwithstanding the foregoing, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence in the case of an Event of Default under this Agreement shall constitute arising from certain events of bankruptcy or insolvency, with respect to the Company, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a default under each and every other Loan Documentmajority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Lender's rights and remedies are cumulative and Trustee may be exercised concurrently withhold from Holders of the Notes notice of any continuing Default or successively from time Event of Default (except a Default or Event of Default relating to time. Any action by the Lender against any property payment of principal, premium, if any, interest or party shall not serve to release or discharge any other securityLiquidated Damages, property or party if any) if it determines that withholding notice is in connection with this transactiontheir interest. The Events Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default are as follows:
(a) Failure to pay and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal of, premium and Liquidated Damages, if any, or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the BorrowerNotes.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations."
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Section 6.01 of the Borrower pursuant Indenture shall be amended and restated in its entirety to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrowerread as follows:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (Vail Resorts Inc), Supplemental Indenture (Vail Resorts Inc)
Events of Default and Remedies. 9.1 The If any one or more of the following events shall constitute (each an "“Event of Default" under this Agreement”) shall occur and be continuing for any reason whatsoever (whether voluntary or involuntary, the occurrence by operation of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document law or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:):
(a) Failure Debtor shall fail to pay the (i) any principal or interest on the Borrower's present MML Bridge Notes or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, MML Convertible Notes when and as the same shall be due and payable, payable (whether by acceleration or otherwise; provided ) or (ii) any interest on the MML Bridge Notes or the MML Convertible Notes within five (5) Business Days after Debtor’s receipt of written notice that such default has not been cured prior payment is past due (whether by acceleration or otherwise);
(b) Debtor shall fail to the expiration of observe or perform any covenant or agreement (i) contained in Section 10 and such failure shall continue for ten (10) days following the date upon which the Lender gives the Borrower after written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery notice of such written notice default from the holder of this Note to a GuarantorDebtor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth contained in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.11;
(c) Failure to duly and punctually payany representation, observe and discharge all Indebtedness and other obligations of the Borrower to warranty, certification or statement made by Debtor in this Note or in any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness certificate or other obligations.document delivered pursuant to this Note shall prove to have been incorrect in any respect (or in any material respect if such representation, warranty, certification or statement is not by its terms already qualified as to materiality) when made (or deemed made);
(d) The discovery by the Lender Debtor shall fail to observe or perform any covenant or agreement in respect of any material inaccuracy agreement or the documents evidencing the Senior Indebtedness, beyond any applicable grace periods, which results in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf acceleration of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault maturity of such material agreement or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.such Senior Indebtedness;
(e) The filing a judgment or order for the payment of a petition money in excess of $500,000 (excluding, however, any amounts fully covered by insurance (less any applicable deductible) or indemnification and as to which the insurer or the indemnifying party, as the case may be, has acknowledged its responsibility to cover such judgment or order) shall be rendered against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., of its Subsidiaries and any amendments thereto, such judgment or any similar law order shall continue unsatisfied or regulation, whether federal, state or local, not dismissed within 30 days.unstayed pending appeal for a period of sixty (60) Business Days;
(f) The commencement Debtor or any of its Subsidiaries shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a proceeding by trustee, receiver, liquidator, custodian or against the Borrower other similar official of it or any Affiliate under substantial part of its property, or shall consent to any statute such relief or to the appointment of or taking possession by any such official in an involuntary case or other law providing for an proceeding commenced against it, or 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 or company action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced against Debtor or any of its Subsidiaries seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, or any other similar law or regulationliquidator, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy custodian or other similar action taken by official of it or on behalf any substantial part of any creditor its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of the Borrower, any Affiliate, sixty days; or an order for relief shall be entered against Debtor or any of their respective properties which could have a Material Adverse Effect.its Subsidiaries under the federal bankruptcy laws as now or hereafter in effect;
(h) Any change a default or event of default occurs under the Senior Loan Agreement and if as a result of such default or event of default the indebtedness under the Senior Loan Agreement is accelerated prior to its maturity; or
(i) a default or event of default occurs under the Senior Note and Warrant Purchase Agreement and if as a result of such default or event of default the indebtedness under the Senior Note and Warrant Purchase Agreement is accelerated prior to its maturity; then, and in control every such event and at any time thereafter during the continuance of such event, Purchaser may by written notice to Debtor (i) declare this Note (together with accrued interest thereon) to be, and this Note shall, subject to Section 12 hereof, thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Debtor; provided, however, that in the case of any of the BorrowerEvents of Default specified in clauses (f) or (g) above, Madison Liquidity Investors 104without any notice to Debtor or any other act by Purchaser, MACG from that disclosed in Section 2 this Note (together with accrued interest thereon) shall become immediately due and payable without presentment, demand, protest or other notice of this Agreement.
9.2 The Lender mayany kind, at its optionall of which are hereby waived by Debtor, terminate its obligation to make advances and/or (ii) exercise any or all of the Loan, without notice to the Borrower:
(a) rights and remedies which may be taken upon the occurrence and and/or during the continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.Default.
Appears in 2 contracts
Samples: Convertible Note Agreement (Argyle Security, Inc.), Convertible Note (Mezzanine Management LTD)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) In addition to the other provisions of Default" under this AgreementLease and not in limitation thereof, the occurrence of any of the following shall constitute an “Event of Default” hereunder.
(i) Failure of Tenant to pay Annual Rental, Minimum Rental, Additional Rent, or any other charges due under this Lease and such failure continues for three (3) days after Tenant’s receipt of written notice of such failure from Landlord (provided, if Tenant fails to pay any such charges when due two times within any Lease Year, and Landlord has given Tenant such 3-day notice for Tenant’s two failures, it shall be a default under the Lease for Tenant thereafter in such Lease Year to fail to pay when due, and Landlord shall not be required to give any notice of such failure).
(ii) Failure of Tenant to observe and perform any other obligation in this Lease and continued failure for thirty (30) days after Landlord gives written notice of such failure, or if the nature of such failure is such that it is capable of being cured but cannot be cured within thirty (30) days, within such additional period of time reasonably required by Tenant to cure the same, provided that Tenant commences the cure of such default within such thirty (30) day period and diligently pursues such cure to completion.
(iii) Abandonment or vacation of the Premises by Tenant.
(iv) Failure to carry and maintain any policy of insurance required herein.
(v) Filing of a petition by Tenant for adjudication as a bankrupt debtor or insolvent, or for its reorganization or for the appointment of a receiver or trustee of Tenant’s property; an assignment by Tenant for the benefit of creditors; or the taking possession of Tenant’s property by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant. If any involuntary proceeding of any type referred to in this Section is instituted against Tenant and is not dismissed within sixty (60) days thereafter the same shall be considered an Event of Default.
(b) At any time following the occurrence of an Event of Default as hereinabove set forth, without limiting Landlord in the exercise of any other remedy contained elsewhere in this Lease, at law, in equity, or otherwise, and without any demand or notice whatsoever:
(i) Landlord may terminate this Lease by giving Tenant notice of termination, in which event this Lease shall entitle expire and terminate on the Lender date specified in such notice of termination with the same force and effect as though the date so specified were the date herein originally fixed as the termination date of the Term, and all rights of Tenant under this Lease and in and to pursue the Premises shall expire and terminate and Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination (and for those obligations of Tenant which are to survive any such termination by their express terms), and Tenant shall surrender the Premises, including any and all rights improvements, to Landlord on the date specified in such notice, and remediesif Tenant fails to so surrender Landlord shall have the right, legal without notice, to enter upon and equitabletake possession of the Premises and to expel or remove Tenant and its effects without being liable for prosecution or any claim for damages therefor.
(ii) Landlord may terminate this Lease and recover from Tenant all damages Landlord may incur by reason of Tenant’s default, available including, without limitation, a sum which, at the date of such termination represents the then value of the excess, if any, of the whole Annual Rental, Minimum Rental, and all other sums and charges which would have been payable hereunder as Additional Rent by Tenant for the period commencing with the day following the date of such termination and ending with the expiration date of the Term, over the aggregate reasonable rental value of the Premises for the same period, plus the sum of the following: (A) the costs of recovering the Premises and all other expenses incurred by Landlord due to it Tenant’s default, including, without limitation, reasonable attorneys’ fees, (B) the unpaid rent earned as of the date of termination plus interest at the rate of eight percent (8%) or the highest rate allowed by law, whichever is greater, (C) other sums of money and damages owing on the date of termination by Tenant to Landlord under any Loan Document this Lease or otherwisein connection with the Premises, and (D) that amount of money equal to twenty four (24) monthly installments of the Annual Rental, Minimum Rental and all other sums, payable on the date of such termination, all of which shall be deemed immediately due and payable. The Occurrence payment of an Event Default the amount calculated in this Section shall not be deemed a penalty but shall merely constitute payment of liquidated damages, it being understood and acknowledged by Landlord and Tenant that actual damages to Landlord are extremely difficult, if not impossible, to ascertain. In determining the fair market rental value of the Premises as provided herein, the parties hereby agree that, at the time Landlord seeks to enforce this remedy, all relevant factors should be considered, including, but not limited to, (1) the length of time remaining in the Term, (2) the then current market conditions in the general area in which the Premises is located, (3) the likelihood of reletting the Premises for a period of time equal to the remainder of the Term, (4) the net effective rental rates then being obtained by landlords for similar type space of similar size in similar type buildings in the general area in which the Premises is located, (5) the vacancy levels in the general area in which the Premises is located, (6) current levels of new construction that will be completed during the remaining Term and how this construction will likely affect vacancy rates and rental rates, and (7) inflation.
(iii) Without terminating this Lease, Landlord may declare immediately due and payable the present value (using a discount rate of the lower of eight percent (8%) or the rate of interest then payable on currently-issued United States Treasury Bills or Notes having a maturity date, at the time of the default, closest to the scheduled expiration date of the Term) of the whole Rental and all other sums and charges which would have been payable hereunder as Additional Rent by Tenant for the period commencing with the day following the date of such termination and ending with the expiration date of the Term, together with the cost of recovering the Premises and all other expenses incurred by Landlord in connection with Tenant’s default, plus the unpaid rent earned as of the date of termination, plus interest at the rate of eight percent (8%) or the highest rate allowed by law, whichever is greater, plus all other sums of money and damages owing by Tenant to Landlord under this Agreement Lease or in connection with the Premises; provided, however, that such payments shall not be deemed a penalty or liquidated damages, but shall merely constitute payment in advance of all Rental and Additional Rent payable hereunder throughout the Term. Upon making such payment, Tenant shall be entitled to receive from Landlord all rents received by Landlord from other assignees, tenants, and subtenants on account of said Premises during the stated Term of this Lease provided that the monies to which Tenant shall so become entitled shall in no event exceed the entire amount actually paid by Tenant to Landlord pursuant to the preceding sentence less all costs, expenses and reasonable attorneys’ fees of Landlord incurred in connection with the reletting of the Premises. Such sum shall, at the option of Landlord, be immediately due and payable upon notice to Tenant as if by the terms of this Lease they were payable in advance; and Landlord may immediately proceed to distrain, collect, or bring action for the amount due hereunder or such part thereof as being in arrears, or may file a default under each proof of claim in any bankruptcy or insolvency proceedings whether similar to the foregoing or not, to enforce payment thereof.
(iv) Without terminating this Lease, and every other Loan Document. The Lender's rights with or without notice to Tenant, Landlord may in its own name or as agent for Tenant enter into and remedies are cumulative upon and take possession of the Premises or any part thereof, and, at Landlord’s option, remove persons and property therefrom and such property, if any, may be exercised concurrently removed and stored in a warehouse or successively elsewhere at the cost of, and for the account of Tenant, all without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby, and Landlord may rent the Premises or any portion thereof as the agent of Tenant, with or without advertisement, by private negotiations and for any term upon such terms and conditions as Landlord may deem necessary or desirable, in Landlord’s sole discretion. Landlord shall in no way be responsible or liable for any failure to rent the Premises or any part thereof, or for any failure to collect any rent due upon such reletting. Upon each such reletting, all rentals received by Landlord from such reletting shall be applied: first, to the payment of any indebtedness (other than any rent due hereunder) from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including, without limitation, brokerage fees and reasonable and actual attorneys’ fees and costs of alterations and repair; third, to the payment of rent and other charges then due and unpaid hereunder; and the residue, if any, shall be held by Landlord to the extent of and for application in payment of future rent, if any becomes owing, as the same may become due and payable hereunder. In reletting the Premises as aforesaid, Landlord may grant rent concessions and Tenant shall not be credited therefor. If such rentals received from such reletting shall at any time or from time to timetime be less than sufficient to pay to Landlord the entire sums then due from Tenant hereunder. Any action by Tenant shall pay any such deficiency to Landlord. Such deficiency shall, at Landlord’s option, be calculated and paid monthly. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for any such previous default.
(v) Without terminating this Lease, and with or without notice to Tenant, Landlord may enter into and upon the Lender against Premises and without being liable for prosecution or any property claim for damages therefor, maintain the Premises and repair or party replace any damage thereto or do anything for which Tenant is responsible hereunder. Tenant shall reimburse Landlord immediately upon demand for any expenses which Landlord incurs in thus effecting Tenant’s compliance under this Lease, and Landlord shall not serve be liable to release Tenant for any damages with respect thereto.
(vi) Without liability to Tenant or discharge any other securityparty and without constituting a constructive or actual eviction, Landlord may suspend or discontinue furnishing or rendering to Tenant any property, material, labor, utilities or other service, wherever Landlord is obligated to furnish or render the same, so long as Tenant is in default under this Lease.
(vii) Landlord may allow the Premises to remain unoccupied and collect rent from Tenant as it comes due.
(viii) Landlord may foreclose any security interest in the property of Tenant which Landlord may have under the laws of the State of Georgia or party under this Lease, including the immediate taking of possession of all property on or in connection with this transaction. The Events of Default are the Premises.
(c) Landlord and Tenant further agree as follows:
(ai) Failure Tenant agrees to pay reimburse Landlord for all of Landlord’s expenses, including but not limited to reasonable attorneys’ fees in enforcing or attempting to enforce any of Tenant’s obligations in this Lease and if Landlord shall notify Tenant of Tenant’s default under this Lease more than two (2) times in any Lease Year, Tenant shall be assessed a default fee of One Thousand and 00/100 Dollars ($1,000.00) to cover the principal administrative costs associated with giving such notices.
(ii) Tender of rent or interest on the Borrower's present or future indebtedness other charges due after legal action has been commenced against Tenant for nonpayment of rent shall not be a defense to such action, and Tenant hereby waives its rights under O.C.G.A. § 44-7-52 to the Lendercontrary.
(iii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT (AND ANY PARTY CLAIMING BY, THROUGH OR UNDER TENANT) HEREBY MUTUALLY WAIVE ANY AND ALL RIGHTS WHICH EITHER MAY HAVE TO REQUEST A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THIS LEASE OR TENANT’S OCCUPANCY OF OR RIGHT TO OCCUPY THE PREMISES.
(iv) Tenant further agrees that in the event Landlord commences any summary proceeding for nonpayment of rent or possession of the Premises, Tenant will not interpose and hereby waives all right to interpose any counterclaim of whatever nature in any such proceeding. Tenant further waives any right to remove said summary proceeding to any other court or to consolidate said summary proceeding with any other action, whether brought prior or subsequent to the summary proceeding.
(v) No reference to any specific right or remedy in this Lease shall preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action or proceeding to which it may otherwise be entitled at law or in equity or both. The rights and remedies given to Landlord in this Lease are distinct, separate and cumulative remedies, and none of them, whether or not arising pursuant to this Agreementexercised by Landlord, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on be in exclusion of any of the date others. Tenant recognizes in the event of personal delivery a breach or threatened breach by Tenant of such written notice to a Guarantorany of the agreements, conditions, covenants, or (ii) on terms hereof, that Landlord may suffer irreparable damages which are not capable of being definitely ascertained, therefore Landlord shall have the date on which a duly authorized representative right of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice injunction to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing enjoin the same and the right to invoke any other remedy allowed by law or in the United States mail, postage prepaid, for delivery to the Borrowerequity (or both) whether or not other remedies are herein provided.
(bd) Failure to observe, perform and comply with Upon the occurrence of a default on the part of Landlord in any of the its duties and/or obligations evidenced or secured by a Loan Documentas set forth under this Lease, other than as provided in Sections 9.1(a) above; provided that and such default has not been cured prior to the expiration continuing for a period of thirty (30) days following after written notice thereof from Tenant to Landlord (or if the date upon which nature of such default is such that it is capable of being cured but cannot be cured in thirty (30) days, within such additional period of time reasonably required by Landlord to cure the Lender gives same, provided that Landlord commences the Borrower written Notice cure of Default.
(c) Failure such default within such 30-day period and diligently pursues such cure to duly completion), Tenant, as its sole and punctually payexclusive remedy, observe and discharge all Indebtedness and other shall have the right to perform the obligations of Landlord and charge Landlord for the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to reasonable cost of such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Lease Agreement (Ballantyne Strong, Inc.), Lease Agreement (Ballantyne Strong, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute 5.1 For determination of an "Event of Default" under , this Agreement refers to and incorporates by reference the applicable provisions of the Funding Agreement, as if fully set forth in this Agreement.
5.2 Upon the occurrence of an Event of Default and at any time thereafter, Secured Party shall have all rights and remedies provided in this Agreement, the occurrence Funding Agreement, any other agreements between Grantor and Secured Party, the Uniform Commercial Code or other applicable law, all of which shall entitle rights and remedies may be exercised without notice to Grantor, all such notices being hereby waived, except such notice as is expressly provided for hereunder or is not waivable under applicable law. All rights and remedies of Secured Party are cumulative and not exclusive and are enforceable, in Secured Party's discretion, alternatively, successively, or concurrently on any one or more occasions and in any order Secured Party may determine. Without limiting the Lender foregoing, Secured Party may (a) accelerate the payment of the Notes and all Obligations and demand immediate payment thereof to pursue Secured Party, (b) with or without judicial process or the aid or assistance of others, enter upon any premises on or in which any of the Collateral may be located and take possession of the Collateral or complete processing, manufacturing and repair of all or any portion of the Collateral, (c) require Grantor, at Grantor's expense, to assemble and make available to Secured Party any part or all of the Collateral at any place and time designated by Secured Party, (d) collect, foreclose, receive, appropriate, setoff and realize upon any and all rights Collateral, (e) extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and remediesupon any terms or conditions, legal any and equitableall accounts or other Collateral which includes a monetary obligation and discharge or release the account debtor or other obligor, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with without affecting any of the obligations evidenced or secured by a Loan DocumentObligations, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement sell, lease, transfer, assign, deliver or otherwise dispose of a proceeding any and all Collateral (including, without
5.3 Secured Party may apply the cash proceeds of Collateral actually received by or against the Borrower or Secured Party from any Affiliate under any statute sale, lease, foreclosure or other law providing for an assignment disposition of the Collateral to payment of any of the Notes or Obligations, in whole or in part (including reasonable attorneys' fees and legal expenses incurred by Secured Party with respect thereto or otherwise chargeable to Grantor) and in such order as Secured Party may elect, when due. Grantor shall remain liable to Secured Party for the benefit payment of creditorsany deficiency together with interest at the highest rate provided for herein and all costs and expenses of collection or enforcement, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysincluding reasonable attorneys' fees and legal expenses.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender 5.4 Secured Party may, at its option, terminate its obligation to make advances during the existence of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default cure any default by Grantor under any agreement with a third party or (C) pay or bond on appeal any judgment entered against Grantor, discharge taxes, liens, security interests or other encumbrances at any time levied on or existing with respect to the Collateral and pay any amount, incur any expense, or perform any act which, in Secured Party's sole judgment, is necessary or appropriate to preserve, protect, insure, maintain or upon the death Collateral. Secured Party may charge Grantor's loan account for any amounts so expended, such amounts to be repayable by Grantor on demand. Secured Party shall be under no obligation to effect such cure, payment, bonding or disability discharge, and shall not, by doing so, be deemed to have assumed any obligation or liability of Xxxxx X.Grantor.
Appears in 2 contracts
Samples: Security Agreement (Search Capital Group Inc), Security Agreement (Search Capital Group Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its commercially reasonable sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its commercially reasonable sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Notes. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings 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 Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Buyers at a place or any Affiliate seeking relief under places to be designated by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 2 contracts
Samples: Security Agreement (Max Cash Media Inc), Security Agreement (Max Cash Media Inc)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (10) and (11) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Dollar Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of Xxxxx X.principal of, the Notes.
Appears in 2 contracts
Samples: Indenture (CEDC Finance Corp LLC), Indenture (CEDC Finance Corp LLC)
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
8.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) 8.3. The filing of a petition by or against Pledgor expressly acknowledges that the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeAdministrative Agent, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor the Lenders, shall record this Agreement with the USCO and the USPTO, as appropriate. Contemporaneously herewith, the Pledgor shall execute and deliver to the Administrative Agent the Assignment, which Assignment shall have no force and effect and shall be held by the Administrative Agent in escrow until the occurrence of an Event of Default; provided, that, anything herein to the contrary notwithstanding, the security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement. After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of the Administrative Agent in the form reflected on the face of the Assignment and the Administrative Agent may, in its sole discretion, record the Assignment with the USCO and the USPTO, as appropriate.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute 8.4. If an Event of Default shall occur, the Pledgor irrevocably authorizes and empowers the Administrative Agent, on behalf of the Lenders, to terminate the Pledgor’s use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to the Pledgor or any other Person or property, all of which the Pledgor hereby waives, and upon such terms and in such manner as the Administrative Agent may deem advisable, the Administrative Agent, on behalf of the Lenders, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that the Pledgor may have therein, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of Xxxxx X.redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Secured Obligations, whether or not then due, in such order and by such division as the Administrative Agent, in its sole discretion, may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Secured Obligations shall remain liable for any deficiency.
Appears in 2 contracts
Samples: Intellectual Property Security Agreement (ZAGG Inc), Intellectual Property Security Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The following 12.1 LDC events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:default
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or The LDC is in breach of article 6 and such breach is not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration within 10 business days of ten (10) days following the date upon which that the Lender gives IESO notifies the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative LDC of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerbreach.
(b) Failure to observe, perform The LDC is in breach of article 13 and comply with any such breach is not cured within 10 business days of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided date that such default has not been cured prior to the expiration IESO notifies the LDC of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultbreach.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations Any representation or warranty of the Borrower to LDC under this Agreement or in any third partyInvoice, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness report or other obligationsinstrument delivered by the LDC is incorrect, inaccurate or misleading in any material respect, and such representation or warranty is not remedied to the satisfaction of the IESO within 20 business days of the date the IESO notifies the LDC of the incorrect, inaccurate or misleading representation or warranty.
(d) The discovery by the Lender LDC fails to observe any other provision of this Agreement in any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf respect and such failure is not remedied with 20 business days of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in date the Borrower's Due Diligence Documents attributable to IESO notifies the fault or neglect LDC of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderfailure.
(e) The filing An event of a petition by or against insolvency occurs with respect to the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 daysLDC.
(f) The commencement 12.2 IESO remedies for LDC events of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:default
(a) Where an LDC event of default described in section 12.1(a) has occurred and is continuing, and:
(i) it is the first such event of default: (A) the LDC will cease using the material that has given rise to the breach and replace it with material that complies with the LDC’s obligations; and (B) the cost of such replacement material may not be claimed as an Eligible Expense;
(ii) it is the second such event of default: (A) the LDC will cease using the material that has given rise to the breach and replace it with material that complies with the LDC’s obligations; and (B) the cost of the non-conforming material and the replacement material may not be claimed as Eligible Expenses (and to the extent that the IESO has already paid the cost of the non-conforming material as an Eligible Expense, the IESO will be entitled to set off the cost of such non- conforming material against its outstanding payment obligations under this Agreement);
(iii) it is the third such event of default: (A) the license granted under section 6.4(a) may be revoked by the IESO; and (B) the cost of the non-conforming material and of any material that the LDC can no longer use as a result of the revocation of the license may not be claimed as Eligible Expenses (and to the extent that the IESO has already paid the cost of such material as Eligible Expenses, the IESO will be entitled to set off the cost of such material against its outstanding payment obligations under this Agreement); provided that the IESO may terminate this Agreement upon the occurrence and continuance of any Event subsequent events of Default set forth default described in subsections 9.1section 12.1(a).
(a) through 9.1(h) above; or (b) upon Where an LDC event of default described in section 12.1(e) has occurred and is continuing, the occurrence IESO may terminate this Agreement on written notice to the LDC.
(c) Where any LDC event of default other than those described in sections 12.1(a)and 12.1(e) has occurred and continuance is continuing, the IESO may:
(i) withhold any payments relating to the event of default until such time as the LDC event of default is remedied;
(ii) request that the parties’ representatives meet to negotiate a plan for remedying the event of default and preventing it from reoccurring, provided that if such negotiations do not result in a mutually acceptable plan within 20 business days of the IESO’s request, then the issue will be escalated to senior management of the parties for resolution within a period not to exceed 20 business days of the date of escalation; and
(iii) require that the LDC do any of the following: (A) provide additional reasonable reporting to the IESO; (B) hire or retain additional resources, as reasonably appropriate, to resolve the issues giving rise to the event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or default; (C) upon accept additional restrictions on the death activities carried out by the LDC or disability the use of Xxxxx X.funds provided to the LDC; (D) submit a revised CDM Plan, including to address any of the requirements imposed by the IESO under this section 12.2(c)(iii), which will be subject to approval by the IESO, all in accordance with the CDM Plan Submission and Review Criteria Rules; provided that if more than one such event of default has occurred during the term of this Agreement, the IESO may withhold any payments relating to the event of default and terminate this Agreement on written notice to the LDC.
(d) The remedies of the IESO under this section are in addition to any other remedies it may have under this Agreement or at law or equity.
Appears in 2 contracts
Samples: Energy Conservation Agreement, Energy Conservation Agreement
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Note. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings 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 Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Note, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Lender at a place or any Affiliate seeking relief under places to be designated by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 2 contracts
Samples: Security Agreement (Vynleads, Inc.), Security Agreement (Ardent Mines LTD)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Lenders’ Agent may then, or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of Lenders’ lien or security interest in the Collateral in any way permitted by law, or upon ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any 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 cash or on credit, as Federal Expressthe Lenders’ Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Lenders’ Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Lenders may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Lenders’ Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Lenders 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Notes. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper or any of the obligations evidenced or secured by a Loan Document, its contract rights and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Lenders’ Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings 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 Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Lenders’ Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 7, any Proceeds received by the Lender Lenders’ Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Lenders in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Debt, whether on account of principal or interest or otherwise as the Lenders’ Agent in its sole discretion may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of any Event of Default and delivery of a petition by or against written request, the Borrower shall promptly upon demand by the Lenders’ Agent assemble the Equipment, Inventory and Fixtures and make them available to the Lenders’ Agent at a place or any Affiliate seeking places to be designated by the Lenders’ Agent. The rights of the Lenders’ 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 Lenders may, at their election, enforce such right by an action in equity for injunctive relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 daysspecific performance.
(f) The commencement If any one or more of a proceeding by the Events of Default shall occur or against shall exist and be continuing, then in any event, the Lenders have the right to use and operate under all trade names under which the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdoes business.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Security Agreement (Lightning Gaming, Inc.), Security Agreement (Lightning Gaming, Inc.)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "a “Lease Event of Default" ” hereunder:
(i) default in the payment of the Purchase Price or 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, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement (other than a Limited Recourse Event of Default);
(iv) the Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) the Lessee shall fail to observe or perform any covenant or agreement contained (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the request of the Majority Funding Parties) or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), 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 Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Subject to Section 9.02 of the Investment Agreement, upon the occurrence and during the continuance of which any Lease Event of Default, as determined by the Lessor, the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the direction of the Majority Funding Parties) 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 provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to pursue 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 part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lenderthe Lessor's rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action 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 part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor's interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation 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 Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, 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 written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part 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 part 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 Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for 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 a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of a Lease Event of Default are in addition to, attachmentand without prejudice to, levy the 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 remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control 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 Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor's damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.Lessor.
Appears in 2 contracts
Samples: Lease Agreement (Protective Life Corp), Lease Agreement (Protective Life Insurance Co)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, (a) Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each and every after the acceleration of the Notes (so long as such Event of Default has not been waived), subject to the provisions of Section 7 hereof, the Collateral Agent may exercise in respect of the Collateral, in addition to other Loan Document. The Lender's rights and remedies are cumulative provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) require the Company to, and the Company hereby agrees that the Company shall, at the Company’s expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be exercised concurrently designated by the Collateral Agent which is reasonably convenient to both parties; and (ii) without notice except as specified below, sell the Collateral or successively any part thereof in one or more parcels at public or private sale, at the office of the Collateral Agent or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days prior notice to the Company of the time and place of any public or private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time. Any action time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it has been so adjourned.
(b) Subject to the provisions of Section 7 hereof and after satisfying its responsibilities to turn over funds to the Senior Lender pursuant to the Subordination Agreement, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the Notes (so long as such Event of Default has not been waived), any cash held by the Lender against Collateral Agent as Collateral and all cash proceeds received by the Collateral Agent in respect of any property sale of, collection from or party other realization upon, all or any part of the Collateral shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are be applied as follows:
(ai) Failure to pay the principal or interest on the Borrower's present or future indebtedness First: to the LenderCollateral Agent, whether or not arising pursuant to this Agreementits agents and attorneys for amounts due under Section 9 hereof, when including payment of all compensation, expenses and as liabilities incurred, and all advances made, by the same shall be due Collateral Agent and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery costs and expenses of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.collection;
Appears in 2 contracts
Samples: Security Agreement (Mri Interventions, Inc.), Securities Purchase Agreement (Mri Interventions, Inc.)
Events of Default and Remedies. 9.1 The A. Each of the following events acts or omissions of Tenant or occurrences shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows”:
(a1) Failure or refusal by Tenant to timely pay rent or other payments hereunder.
(2) Failure to pay the principal perform or interest on the Borrower's present observe any other covenant or future indebtedness condition of this Lease to the Lenderbe performed or observed by Tenant, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to upon the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following the date upon which the Lender gives the Borrower written Notice notice to Tenant of Default.such failure;
(c3) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations Abandonment or vacating of the Borrower to Leased Premises or any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.significant portion thereof;
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e4) The filing of or execution or occurrence of: a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, ; or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, ; or a petition or other proceeding by or against the Tenant for the appointment of a receivertrustee, receiver or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf liquidator of any creditor of the Borrower, any Affiliate, Tenant or any of their respective properties which could have Tenant’s property or a Material Adverse Effectproceeding by any governmental authority for the dissolution or liquidation of Tenant.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon B. Upon the occurrence and continuance of any Event of Default set forth Default, as enumerated above, Landlord may, at Landlord’s option, in subsections 9.1addition to any other remedy or right given hereunder or by law or equity, of any one or more of the following:
(a1) through 9.1(hTerminate this Lease, in which event, Tenant shall immediately surrender possession of the Leased Premises to Landlord;
(2) above; Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant therefrom, with or without having terminated the Lease;
(b3) upon Alter locks and other security devices at the occurrence and continuance Leased Premises.
C. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance or surrender of the Leased Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. No such alteration of security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others at the Leased Premises shall be deemed unauthorized or constitute a conversion, Tenant hereby consenting, after any Event of Default, to the aforesaid exercise of dominion over Tenant’s property within the Building. All claims for damages by reason of any such re-entry or repossession or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. Tenant agrees that any re-entry by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without the necessity for any legal proceedings, as Landlord may elect, and Landlord shall not be liable in trespass or otherwise.
D. In the event which, with the giving Landlord elects to terminate this Lease by reason of notice or the lapse of time, or both, would constitute an Event of Default Default, then notwithstanding such Termination, Tenant shall be liable for and shall pay to Landlord, at Austin, Texas, the sum of all rent and other indebtedness accrued to the date of such termination, plus, as damages, an amount equal to the then present value of the rent reserved hereunder for the remaining portion of the lease term (had such term not been terminated by Landlord prior to the date of expiration stated in Article 2).
E. In the event that Landlord elects to repossess the Leased Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord at Austin, Texas, all rent and other indebtedness accrued to the date of such repossession, plus rent required to be paid by Tenant to Landlord during the remainder of the lease term until the date of expiration of the term as stated in Article 2, diminished by any net sums thereafter received by Landlord through re-letting the Leased Premises during said period (after deducting expenses incurred by Landlord as provided in Article 17.F). In no event shall Tenant be entitled to any excess of any rent obtained by re-letting over and above the rent herein reserved. Actions to collect amounts due by Tenant as provided in this Article 19.E, may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of the lease term.
F. In case of an Event of Default, Tenant shall be liable for and shall pay to Landlord, at Austin, Texas, in addition to any sum provided to be paid above: broker’s fee incurred by Landlord in connection with re-letting the whole or any part of the Leased Premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairing, altering, remodeling or otherwise putting the Leased Premises into condition acceptable to a new tenant or tenants; and all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including reasonable attorneys’ fees (Cwhich shall not be less than 10% of all sums then owing by Tenant to Landlord). Past due rent and other past due payments shall bear interest from due date at ten (10%) percent per annum until paid.
G. In the event of termination or repossession of the Leased Premises for an Event of Default, Landlord shall not have any obligation to re-let or attempt to re-let the premises, or any portion thereof, or to collect rental after re-letting; and in the event of re-letting Landlord may re-let the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose.
H. If Tenant should fail to make any payment or cure any default hereunder within the time herein permitted, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment or remedy such other default for the account of Tenant (and enter the Leased Premises for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees, to pay Landlord upon demand, all costs, expenses and disbursements (including reasonable attorneys’ fees) incurred by Landlord in taking such remedial action.
I. In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting it a lien upon the death property of Landlord or disability upon rent due Landlord), but prior to any such action Tenant will give Landlord (with copies) to Landlord’s Mortgagee) written notice specifying such default with particularity, and Landlord shall thereupon have thirty (30) days in which to cure any such default. Unless and until Landlord fails to cure any default after such notice, Tenant shall not have any remedy or cause of Xxxxx X.action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions.
Appears in 2 contracts
Samples: Lease Agreement (Vincera, Inc.), Lease Agreement (Vincera, Inc.)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute an "Event of Default" Default under this Pledge Security Agreement:
1. An event occurs which constitutes an Event of Default under the Securities Agreement and/or the Certificate;
2. The perfection of the security interest granted Lender in the Collateral is impaired or is about to become impaired; or
3. Borrower and/or Pledgor fails to perform any term, condition or covenant of this Agreement, the occurrence of which shall entitle the Lender to pursue or any and all rights and remedies, legal and equitable, available to it under any Loan Document representation or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action warranty made by the Lender against any property or party shall not serve to release or discharge any other security, property or party Pledgor and/or Borrower in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as or by Borrower in the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to Securities Agreement and/or the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCertificate, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice in connection therewith is determined to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerbe false.
(b) Failure to observe, perform and comply with any Upon the occurrence of one or more of the obligations evidenced foregoing Events of Default, Lender may liquidate so much of the Collateral as is required to pay the Debt and the costs, expenses and fees described in 2(a) hereof. Upon the occurrence of an Event of Default, without limiting any other right or secured by a Loan Documentremedy of Lender which may be available at law or in equity, Lender, without demand of performance or other than demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase, contract to sell or otherwise dispose of and deliver said Collateral, or any part thereof, at public or private sale or sales, at any exchange, brokers' board or elsewhere upon such terms and conditions as provided Lender may deem advisable. Lender or its agent shall pay over the net proceeds of any such collection, receipt, appropriation, realization or sale, after deduction of all reasonable costs and expenses of every kind incurred therein or in Sections 9.1(a) above; provided that such default has not been cured prior any way relating to the expiration rights of thirty (30) days following Lender hereunder, including reasonable attorneys' fees and legal expenses, to Lender for application by Lender to the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually paypayment, observe and discharge all Indebtedness and other obligations in whole or in part, of the Debt, Borrower to remaining liable for any third partydeficiency remaining unpaid after such application, unless and only after so paying over such net proceeds and after the same is being contested in good faith payment by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in other amount required by any statementprovision of law need Lender account for the surplus, assuranceif any, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Pledgor. Pledgor agrees that Lender need not give more than ten days' notice of the Borrower pursuant to this Agreement, time and place of any public sale or of the time after which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute private sale or other law providing for an assignment for the benefit intended disposition is to take place and that such notice is reasonable notification of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation such matters. No notification need be given to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute Pledgor if it has signed after an Event of Default a statement renouncing or (C) upon modifying any right to notification of sale or other intended disposition. In addition to the death or disability rights and remedies granted to Lender in this Agreement, Lender shall have all the rights and remedies of Xxxxx X.a secured party under the Uniform Commercial Code of the State of New York.
Appears in 2 contracts
Samples: Pledge Security Agreement (Diplomat Direct Marketing Corp), Pledge Security Agreement (Tadeo Holdings Inc)
Events of Default and Remedies. 9.1 (a) The following events occurrence of any event or the existence of any condition which is specified as an “Event of Default” under the Credit Agreement shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure Upon the occurrence and during the continuation of any Event of Default, the Agent shall have, in addition to observeall other rights provided herein or by law, perform the rights and comply remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights or remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further the Agent may, without demand and, to the extent permitted by applicable law, without advertisement, notice, hearing or process of law, all of which each Debtor hereby waives to the extent permitted by applicable law, at any time or times, sell and deliver any or all Collateral held by or for it at public or private sale, at any securities exchange or broker’s board or at the Agent’s office or elsewhere, for cash, upon credit or otherwise, at such prices and upon such terms as the Agent deems advisable, in its discretion. In the exercise of any such remedies, the Agent may sell the Collateral as a unit even though the sales price thereof may be in excess of the amount remaining unpaid on the Secured Obligations. Also, if less than all the Collateral is sold, the Agent shall have no duty to marshal or apportion the part of the Collateral so sold as between the Debtors, or any of them, but may sell and deliver any or all of the Collateral without regard to which of the Debtors are the owners thereof. In addition to all other sums due any Secured Creditor hereunder, each Debtor shall pay the Secured Creditors all reasonable costs and expenses incurred by the Secured Creditors, including reasonable attorneys’ fees and court costs, in obtaining, liquidating or enforcing payment of Collateral or the Secured Obligations or in the prosecution or defense of any action or proceeding by or against any Secured Creditor or any Debtor concerning any matter arising out of or connected with this Agreement or the Collateral or the Secured Obligations, including, without limitation, any of the obligations evidenced foregoing arising in, arising under or secured by related to a Loan Documentcase under the United States Bankruptcy Code (or any successor statute). Any requirement of reasonable notice shall be met if such notice is personally served on or mailed, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior postage prepaid, to the expiration Debtors in accordance with Section 13(b) hereof at least 10 days before the time of thirty (30) days following sale or other event giving rise to the date upon requirement of such notice. The Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. Any Secured Creditor may be the purchaser at any such sale. Each Debtor hereby waives all of its rights of redemption from any such sale. The Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, be made at the time and place to which the Lender gives sale was postponed or the Borrower written Notice Agent may further postpone such sale by announcement made at such time and place. The Agent has no obligation to prepare the Collateral for sale. The Agent may sell or otherwise dispose of Defaultthe Collateral without giving any warranties as to the Collateral or any part thereof, including disclaimers of any warranties of title or the like, and each Debtor acknowledges and agrees that the absence of such warranties shall not render the disposition commercially unreasonable.
(c) Failure Without in any way limiting the foregoing, upon the occurrence and during the continuation of any Event of Default hereunder, in addition to duly all other rights provided herein or by law, (i) the Agent shall have the right to take physical possession of any and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower Collateral and anything found therein, the right for that purpose to enter without legal process any third partypremises where the Collateral may be found (provided such entry be done lawfully), unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside right to maintain such possession on its books adequate reserves with respect the relevant Debtor’s premises or to remove the Collateral or any part thereof to such Indebtedness or other obligationsplaces as the Agent may desire and (ii) each Debtor shall, upon the Agent’s demand, promptly assemble the Collateral and make it available to the Agent at a place reasonably designated by the Agent. If the Agent exercises its right to take possession of the Collateral, each Debtor shall also at its expense perform any and all other steps reasonably requested by the Agent to preserve and protect the security interest hereby granted in the Collateral, such as placing and maintaining signs indicating the security interest of the Agent, appointing overseers for the Collateral and maintaining Collateral records.
(d) The discovery by powers conferred upon the Lender Secured Creditors hereunder are solely to protect their interest in the Collateral and shall not impose on them any duty to exercise such powers. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equivalent to that which the Agent accords its own property, consisting of similar type assets. This Agreement constitutes an assignment of rights only and not an assignment of any material inaccuracy duties or obligations of the Debtors in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable way related to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Collateral, or in any other Loan Document, or in any other agreement between the Borrower and the LenderAgent shall have no duty or obligation to discharge any such duty or obligation. Neither any Secured Creditor nor any party acting as attorney for any Secured Creditor shall be liable for any acts or omissions or for any error of judgment or mistake of fact or law other than such person’s gross negligence or willful misconduct.
(e) The filing of a petition Failure by the Agent to exercise any right, remedy or against the Borrower or any Affiliate seeking relief option under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, this Agreement or any other similar law agreement between any Debtor and the Agent or regulationprovided by law, whether federalor delay by the Agent in exercising the same, state or localshall not operate as a waiver; and no waiver shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated. The rights and remedies of the Secured Creditors under this Agreement shall be cumulative and not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf exclusive of any creditor of the Borrower, other right or remedy which any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Secured Creditor may have. For purposes of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon shall be construed as continuing after its occurrence until the death or disability of Xxxxx X.same is waived in writing by the Agent.
Appears in 2 contracts
Samples: Security Agreement (Unified Western Grocers Inc), Security Agreement (Unified Western Grocers Inc)
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events shall constitute an "Event of (hereinafter referred to as a “Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:”):
(a) Failure the Tenant shall have failed to pay an installment of Base Rental or of Additional Rent or any other amount payable hereunder when due after five (5) days’ written notice from the principal Landlord;
(b) there shall be a default of or interest with respect to any condition, covenant, agreement or other obligation on the Borrower's present part of the Tenant to be kept, observed or future indebtedness performed hereunder (other than the obligation to pay Base Rental, Additional Rent or any other amount of money) and such Default shall be continuing for a period of more than twenty (20) days after written notice by the Landlord to the LenderTenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, whether sub-tenant or not arising pursuant licensee of the Tenant or anyone permitted by the Tenant to this Agreementbe upon the Leased Premises and the Tenant, when and after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the same case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be due vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for fourteen (14) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and payablechattels of the Tenant located in the Leased Premises, whether shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; then the Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by acceleration statute or otherwise; provided that :
(i) to remedy or attempt to remedy any Default of the Tenant, and in so doing to make any payments due or alleged to be due by the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such default has not been cured prior event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the expiration Landlord on demand;
(ii) with respect to unpaid overdue Rent, to the payment by the Tenant of ten the Rent and of interest (10which said interest shall be deemed included herein in the term “Rent”) days following thereon at a rate equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord’s principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on maximum amount allowed under the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative laws of the Borrower acknowledges receipt of such written notice, or jurisdiction in which the Building is located;
(iii) on to terminate this Lease forthwith by leaving upon the day after sending Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(iv) to enter the Leased Premises as agent of the Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of the Tenant to take possession of any furniture or other property thereon and upon giving ten (10) days’ written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Lease (PointClickCare Corp.), Lease (PointClickCare Corp.)
Events of Default and Remedies. 9.1 7.1 The occurrence of any of the following events shall constitute be an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows” hereunder:
(a) Failure Borrowers fail to pay any Monthly Payment as and when due hereunder and under the principal Note, or interest if Borrowers fail to pay any other monetary Obligation under any Loan Document, as and when due, whether on the Borrower's present scheduled due date or future indebtedness to the Lenderupon acceleration, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration maturity or otherwise; provided that , and in each case such default has not been cured prior to the expiration of ten failure continues for three (103) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written Business Days after notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerfrom Lender.
(b) Failure Borrowers shall fail to observekeep, observe or perform and comply with any of the obligations evidenced terms, covenants, representations or secured by a warranties contained in this Agreement or another Loan Document, (other than as provided compliance with the Minimum Deposit Balance requirement, which, for the avoidance of doubt, non-compliance therewith shall not constitute a Default or Event of Default hereunder) within the time and in Sections 9.1(a) above; provided that the manner required, and Borrowers fail to rectify or cure such default has not been cured prior to the expiration of non-performance within thirty (30) days following the date upon which the of written notice by Lender gives the Borrower written Notice of Defaultto Borrower’s Representative.
(c) Failure If a Borrower defrauds or attempts to duly and punctually paydefraud Lender, observe and discharge all Indebtedness and other obligations of the Borrower to or if any third party, unless the same is being contested in good faith warranty or representation made by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained Borrowers in this Agreement or in any document delivered Loan Document shall at any time be false or misleading in any material respect; provided that if a misrepresentation reasonably appears not to be delivered by have been purposeful and does not give rise (or on behalf of the Borrower pursuant would not reasonably likely give rise) to this Agreement, which inaccuracy would result in a Material Adverse Effect Effect, and if Borrower causes the representation or warranty in question to be made correct within thirty (except that inaccuracies in 30) days after discovering the misrepresentation or after notice, whichever occurs first, and if Lender reasonably accepts the corrected representation or warranty, then, an Event of Default will not arise solely on account of the subject misrepresentation.
(d) Any Borrower's Due Diligence Documents attributable to ’s or the fault Liquidation Trust’s dissolution or neglect termination of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderexistence.
(e) The filing of a petition by or against the A Borrower or Guarantor becomes the subject of any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretobankruptcy or other voluntary or involuntary proceeding, or a receivership, in or out of court, for the adjustment of debtor-creditor relationships, which, in any similar law or regulationsuch instance, whether federal, state or local, is not dismissed within 30 sixty (60) days.
(f) The commencement entry of a proceeding by or non-monetary judgment against the a Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorswhich could reasonably be expected to have a Material Adverse Effect, the appointment of a receiverand which is not Properly Contested and bonded, or any other similar law or regulationsatisfied and released, whether federal, state or local, not dismissed within 30 dayssixty (60) days after the date on which such judgment is entered.
(g) The garnishmentseizure or forfeiture of, attachment, levy or other similar action taken by or on behalf the issuance of any creditor writ of the Borrowerpossession, any Affiliategarnishment or attachment, or any of their respective properties which could have a Material Adverse Effectturnover order for any Trust Property that is not dismissed within sixty (60) days.
(h) A final judgment for the payment of money in excess of $250,000 or final judgments which in the aggregate exceed $250,000 (in each case, except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage) shall be rendered against a Borrower, and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed (by bond or otherwise).
(i) Any change default under the Guaranty Agreement or the revocation or attempted revocation or repudiation thereof, in control whole or part, by a Guarantor.
(j) If a Borrower transfers, conveys, assigns or permits to be transferred, conveyed or assigned, or interferes with Lender’s rights under any Trust Property or proceeds therefrom, in any such case, in violation of the Borrowerterms of the Loan Documents, Madison Liquidity Investors 104or with the intent to hinder, MACG from that disclosed in Section 2 delay or defraud its creditors or any of this Agreementthem, including, without limitation, Lender.
9.2 The (k) If Borrower fails to pay Lender may, at its option, terminate its obligation to make advances the Mandatory Repayment Amount due on sale of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a Trust Property.
Appears in 2 contracts
Samples: Loan and Security Agreement (Woodbridge Liquidation Trust), Loan and Security Agreement (Woodbridge Liquidation Trust)
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one an "“Event of Default" under ”), Landlord shall have the right to exercise any rights or remedies available in this AgreementLease, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document at law or otherwisein equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall be:
(ai) Failure Tenant’s failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lenderany Annual Rental payable hereunder within five (5) days after same becomes due; provided, whether or not arising pursuant to this Agreementhowever, when and as the same Tenant shall be due entitled to written notice and payable, whether by acceleration or otherwise; provided that such default has not been cured prior a five (5) day cure period with respect to the expiration its failure to pay any installment of Annual Rent once during each Lease Year;
(ii) Tenant’s failure to pay any other sum of money payable hereunder within ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such after written notice to thereof from Landlord of a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of deficiency in such written notice, or payment;
(iii) on the day after sending such written notice Tenant’s failure to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any other of the obligations evidenced terms, covenants or secured by a Loan Document, other than as provided conditions contained in Sections 9.1(a) above; provided that such default has this Lease if not been cured prior to the expiration of remedied within thirty (30) days following after receipt of written notice thereof, or if such default cannot be remedied within such period, Tenant does not within thirty (30) days after written notice thereof commence such act or acts as shall be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or acts within ninety (90) days after written notice thereof;
(iv) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or 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 date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness petition or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))appointment, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, the appointment or petitions for or enters into an arrangement;
(v) Tenant allows its leasehold estate to be taken under any writ of a receiver, execution and such writ is not vacated or set aside within thirty (30) days; or
(vi) A default by Tenant under any other similar law lease heretofore or regulation, whether federal, state or local, not dismissed within 30 dayshereafter made by Tenant for any other space in the Business Park.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) In addition to its other remedies, Landlord, upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default by Tenant, shall have the immediate right, after any applicable grace period expressed herein, to terminate and cancel this Lease and/or terminate Tenant’s right of possession pursuant to applicable law, and reenter and remove all persons and properties from the Premises that Tenant has abandoned and to place same in storage (for no more than thirty (30) days after which Landlord may dispose of said property) at any premises within the County in which the Premises is located; and in such event, Tenant shall be liable to Landlord for costs incurred by Landlord in connection with such removal and storage, all without Landlord 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 in accordance with applicable law 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 Tenant at the time of 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 Tenant shall remain liable to Landlord for the total Annual Rental (Cwhich may at Landlord’s election be accelerated to be due and payable in full as of the Event of Default and recoverable as damages in a lump sum) upon as would have been payable by Tenant hereunder for the death remainder of the term less the rentals actually received from any reletting or, at Landlord’s election, less the reasonable rental value of the Premises for the remainder of the term. In determining the Annual Rental which would be payable by Tenant subsequent to default, except with respect to Minimum Rental (which shall be calculated in accordance with Section 1(g) hereof) the Annual Rental for each Lease Year of the unexpired term shall be as set forth in Section 1(g) hereof. If any rent owing under this Lease is collected by or disability through an attorney, Tenant agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by applicable law. Upon an Event of Xxxxx X.Default by Tenant hereunder, Landlord shall use commercially reasonable efforts to mitigate its damages.
Appears in 2 contracts
Samples: Lease Agreement (Inspire Pharmaceuticals Inc), Lease Agreement (Inspire Pharmaceuticals Inc)
Events of Default and Remedies. 9.1 The following events shall constitute Should a “Default” under the Note Purchase Agreement or a default or event of default under the Security Agreement (either an "“Event of Default" under ” for purposes of this Note) occur and be continuing, Purchaser may, at its election, do any one or more of the following: (a) exercise one or more remedies provided for in the Note Purchase Agreement or Security Agreement; (b) declare the entire unpaid balance of principal of and accrued, the occurrence unpaid interest upon this Note to be immediately due and payable; (c) reduce any claim to judgment; (d) foreclose any or all liens and security interests securing payment thereof or any part thereof; and/or (e) enforce any of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every Purchaser’s other Loan Document. The Lender's rights and remedies are provided under or pursuant to any applicable laws or agreement. All rights and remedies of Purchaser shall be cumulative and concurrent and may be pursued singularly, successively, or together, and may be exercised concurrently or successively from time to time. Any action by as often as the Lender against any property or party occasion therefor shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, arise and whether or not arising pursuant to this AgreementPurchaser has initiated any foreclosure proceeding, when and as the same shall be due and payable, whether by acceleration judicial or otherwise; provided that . Failure by Purchaser to exercise any right or remedy upon the occurrence of an Event of Default shall not constitute a waiver of the right to exercise such default has not been cured prior to right or remedy upon the expiration occurrence of ten (10) days following the date upon which the Lender gives the Borrower written Notice any subsequent Event of Default. In this Section 9the event that Purchaser, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder, consults an attorney regarding the enforcement of any of its rights under this Note or (C) upon if this Note is placed in the death hands of an attorney for collection or disability of Xxxxx X.if suit be brought to enforce this Note, Company promises to pay all costs thereof, including reasonable attorneys’ fees. Such costs and attorneys’ fees shall include, without limitation, costs and reasonable attorneys’ fees incurred by Purchaser in any appellate proceedings or in any proceedings under any present or future federal Bankruptcy act, state receivership law or probate.
Appears in 2 contracts
Samples: Promissory Note (Whiteglove House Call Health Inc), Promissory Note (Whiteglove House Call Health Inc)
Events of Default and Remedies. 9.1 (a) The following occurrence of any of the events shall constitute identified in the Loan Agreement or elsewhere in the other Loan Documents as an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same ” shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice an “Event of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure to observe, perform Upon the occurrence and comply with any during the continuance of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice an Event of Default.
(c) Failure , in addition to duly all other rights and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained remedies granted in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, Mezzanine Lender may:
(i) exercise all rights and remedies of a secured party under the Uniform Commercial Code (whether or not the Uniform Commercial Code 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 laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if Mezzanine Lender were the sole and absolute owner thereof (and Pledgor agrees to take all such action as may be appropriate to give effect to such rights);
(ii) make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(iii) in its discretion, in its name or in the name of Pledgor or otherwise, demand, xxx for, collect, direct payment of or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but Mezzanine Lender shall be under no obligation to do so; and
(iv) without limiting the generality of the foregoing clause (iii) above, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below or otherwise required hereby) to or upon Pledgor, Tower Mortgage Borrower or any other Person (all and each of which demands, presentments, protests, advertisements and notices, or other defenses, are hereby waived to the extent permitted under applicable law), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or forthwith sell, assign, give option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of Mezzanine Lender or elsewhere upon such terms and conditions as Mezzanine Lender may deem advisable and at such prices as Mezzanine Lender may deem best in its sole discretion, for cash or on credit or for future delivery without assumption of any credit risk; provided, however, that Mezzanine Lender shall provide Pledgor with not less than ten (10) days written notice prior to conducting any public or private sale of the Collateral, and Pledgor hereby agrees and stipulates that such notice shall be deemed to be commercially reasonable notice in satisfaction of the requirements of the Uniform Commercial Code. Mezzanine Lender shall have the right, without notice or publication, to adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for such sale, and any such sale may be made at any time or place to which the same may be adjourned without further notice. Mezzanine Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of Pledgor, which right or equity of redemption is hereby waived and released. Mezzanine Lender shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of Mezzanine Lender hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as Mezzanine Lender may elect, and only after such application and after the payment by Mezzanine Lender of any other agreement between amount required by any provision of law, including, without limitation, Sections 9-610 and 9-615 of the Borrower Uniform Commercial Code, need Mezzanine Lender account for the surplus, if any, to Pledgor. To the extent permitted by applicable law, Pledgor waives all claims, damages and demands it may acquire against Mezzanine Lender arising out of the Lenderexercise by Mezzanine Lender of any of its rights hereunder.
(ec) The filing rights, powers, privileges and remedies of a petition by or against the Borrower or any Affiliate seeking relief Mezzanine Lender under the Federal Bankruptcy Codethis Agreement are cumulative and shall be in addition to all rights, 11 U.S.C. ss. 101powers, et seq., privileges and any amendments thereto, or any similar remedies available to Mezzanine Lender at law or regulationin equity. All such rights, whether federal, state powers and remedies shall be cumulative and may be exercised successively or local, not dismissed within 30 daysconcurrently without impairing the rights of Mezzanine Lender hereunder.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Events of Default and Remedies. 9.1 13.1 The following events Licensee shall constitute an "Event be in breach of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by in the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsevent of:
(a) Failure The Licensee's failure to pay the principal make any payment hereunder on or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on before the date on which a duly authorized representative of such payment becomes due and payable and the Borrower acknowledges receipt continuation of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, failure unremedied for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following after written notice thereof has been given to the date upon Licensee by Bio-Products;
(b) The Licensee's failure to observe or perform any covenant, condition or agreement contained in this Agreement and the continuation of such failure unremedied for thirty (30) days after written notice thereof has been given to the Licensee by Bio-Products, unless such breach can not be remedied within such thirty (30) days for reasons beyond the Licensee's control, in which case the Lender gives the Borrower written Notice of Default.Licensee shall have a reasonable time within which to remedy such breach; or
(c) Failure Any warranty or representation made herein by the Licensee and contained in this Agreement, shall prove to duly and punctually payhave been false, observe and discharge misleading or incorrect in any material respect as of the date made, or shall have failed to state a fact necessary in order to make the statements made not misleading. No termination of this Agreement shall relieve the Licensee of the obligation to pay to Bio-Products all Indebtedness royalties, fees, and other obligations payments accrued at the time of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationstermination.
13.2 Bio-Products shall be in default of this Agreement in the event of:
(da) The discovery by the Lender of Bio-Products' failure to observe or perform any material inaccuracy in any statement, assurance, representation, covenant, warranty, term condition or condition by the Borrower agreement contained in this Agreement or in any document delivered the UAH License and the continuation of such failure unremedied for thirty (30) days after written notice thereof shall have been given to Bio-Products by the Licensee;
(b) Any warranty or to be delivered representation made herein by or on behalf of Bio-Products, contained in this Agreement or in the Borrower pursuant UAH License, shall prove to have been false, misleading or incorrect in any material respect as of the date made, or shall have failed to state a fact necessary in order to make the statements made not misleading; or
(c) If at any time Bio-Products defaults in its duties in connection with, or by its conduct attempts to or actually terminates the UAH License which default and/or termination affects or terminates the ability of Bio-Products to grant the license contained in this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in or affects or terminates Licensee's ability to continue operation of existing plants or build new plants.
13.3 The Licensee shall have the Borrower's Due Diligence Documents attributable to the fault following remedies for breach or neglect of third-parties shall not constitute a breach default of this Section 9.1(d))Agreement or the UAH License by Bio-Products:
(a) Upon Bio-Products' breach or termination of the UAH License or this Agreement, such that the breach or termination has affected the ability of Licensee to continue operation of existing plants and preclusion of building new plants, the Licensee may at its option terminate this Agreement and contract directly with UAH as provided in this Agreement., The Licensee and any sub-licensee shall utilize the Technology, free of any royalties, fees, and other Loan Document, amounts accrued through the date of such default or in any other agreement between the Borrower breach and the Lenderthereafter.
(eb) The filing of a petition by In addition to any other right or against remedy available to the Borrower Licensee under this Agreement or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar in law or regulationequity, whether federalupon Bio-Products' breach or default of this Agreement or the UAH License, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or Licensee shall be entitled to withhold and/or offset any Affiliate under any statute and all royalties or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of fees due to Bio-Products under this Agreement.
9.2 The Lender (c) Notwithstanding anything to the contrary in this Agreement, the Licensee may terminate this Agreement at any time upon six (6) months prior written notice to Bio-Products, at which time the Licensee will cease utilizing the Technology, and pay to Bio-Products any royalties, fees and other amounts accrued through the date of such termination. Immediately upon termination of this Agreement all rights, privileges and licenses granted to the Licensee hereunder shall revert to Bio-Products, including all sub-licenses of facilities granted by the Licensee.
13.4 Upon the Licensees' breach of this Agreement and it's failure to cure said breach as provided above in 13.1, Bio-Products may, at its option, (i) terminate this Agreement, at which time Licensee shall cease utilizing the Technology and such termination shall relieve Licensee of its obligation obligations to make advances pay Bio-Products any further royalties or fees other than those fees and royalties already accrued through the date of the Loantermination and all sub-licenses granted by Licensee shall be assigned to Bio-Products; or (ii) Bio-Products may seeks to recover such damages to which it may be entitled by applicable law, without notice to the Borrower:including but not limited to, equitable and injunctive relief.
(a) Any claim or controversy arising out of or relating to this Agreement, or the breach thereof, including without limitation the right of any Party hereto to terminate this Agreement, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its then current Commercial Arbitration Rules, and judgment upon the occurrence and continuance award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be before one neutral arbitrator to be selected in accordance with the then current Commercial Arbitration Rules of any Event the American Arbitration Association. The parties shall have all rights to pre-arbitration discovery pursuant to the Federal Code of Default set forth in subsections 9.1Civil Procedure.
(a) through 9.1(h) above; or (b) upon Neither of the occurrence and continuance Parties nor the arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Parties except to counsel, accountants, and other need to know professionals.
(c) All fees and expenses of the arbitration shall be born by the Parties equally. However, each Party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs.
(d) In the event whichthat a claim or controversy over the right of any Party to terminate this Agreement shall be submitted for arbitration, with this Agreement shall continue in full force and effect, and the giving termination shall be of notice or no effect, until the lapse arbitrator renders a final decision.
13.6 In the event of timethe commencement of a voluntary case under the Bankruptcy Code by the Licensee, or bothLicensee's acquiescence in an involuntary petition under the Bankruptcy Code which voluntary or involuntary case remains undismissed for a period of ninety (90) days or more, would constitute the right and license conferred under this Agreement shall automatically become and shall thereafter be null and void. The commencement of a voluntary case under the Bankruptcy Code by Bio-Products, or Bio-Products' acquiescence in an Event involuntary petition under the Bankruptcy Code, which voluntary or involuntary case remains undismissed for a period of Default ninety (90) days or (C) upon more, shall be treated as a material breach of the death or disability of Xxxxx X.Agreement.
Appears in 2 contracts
Samples: Technology License Agreement (World Waste Technologies Inc), Technology License Agreement (World Waste Technologies Inc)
Events of Default and Remedies. 9.1 The following events Now, if the Property Owner shall constitute an "Event keep and perform each of Default" under the covenants, conditions, obligations and agreements of the Property Owner contained in the Note and this AgreementDeed of Trust, the occurrence of which shall entitle the Lender to pursue any and all rights and remediesthen, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same trust conveyance shall be due of no further force or effect. But, if the Property Owner shall fail to keep and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the covenants, conditions, obligations evidenced or secured by a Loan Documentand agreements in the Note and this Deed of Trust, other than as provided in Sections 9.1(a) above; provided that and such default has defaults are not been cured prior to the expiration of within thirty (30) days following from written notice to Property Owner specifying such default, then, and in any of such events, this trust conveyance shall remain in full force and effect, and at the option of THDA, all amounts advanced under the Note or hereunder shall become due and payable at once, without notice, and the Trustee, acting in person or through an agent or agents duly appointed by him for this purpose, is hereby authorized and empowered, upon giving twenty (20) days’ notice by three (3) publications in any newspaper, daily or weekly, published in the county in which the Property is located, to sell the Property at the front door of the Courthouse in said county (or at such other place at said Courthouse as is usually and customarily used for the conduct of foreclosure sales) to the highest bidder for cash, at public outcry, free from the equity of redemption, any and all statutory rights of redemption including, without limitation, those provided in T.C.A. Section 66-8-101, as amended, or as may be hereinafter enacted, homestead, dower, courtesy, any elective share, and all other exemptions or marital rights of every kind, which are hereby expressly waived; and the Trustee is authorized and empowered to execute and deliver a deed to the purchaser. The sale may be adjourned from day to day by the Trustee or his agent or successor, by announcement at the Courthouse on the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same sale is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretooriginally set, or any similar law or regulationadjournment thereof, whether federal, state or local, not dismissed within 30 days.
(f) and may be reset at a later date without any additional publication. The commencement of a proceeding by or against creditor may bid at any sale under this trust conveyance. Property Owner agrees that the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Trustee may, at its option, terminate its obligation to make advances any time after default in the payment of any part of the Loanindebtedness, enter and take possession of the Property, and shall only account for the net rents actually received by him. Property Owner further agrees that, in the event the Trustee fails, before selling the Property as herein provided, to enter and take possession thereof, the purchaser shall be entitled to immediate possession thereof upon the delivery to him by the Trustee of a deed for the Property. THDA may, at any time and from time to time, without notice assigning cause, in THDA’s sole and absolute discretion, remove the Trustee herein named and appoint a successor to execute this trust, by an instrument in writing duly executed by THDA and filed for record in the county in which the Property is located and, upon the execution and filing of such instrument, the title herein conveyed to the BorrowerTrustee shall be vested in the successor so appointed. In the event of a sale of the Property under and by virtue of this trust, the Property Owner, and all persons holding under Property Owner, shall be and become the tenants at will of the purchaser from and after the execution and delivery of a deed to the purchaser. Upon any sale under this Deed of Trust, the proceeds will be applied by the Trustee:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 2 contracts
Samples: Deed of Trust, Deed of Trust
Events of Default and Remedies. 9.1 The 7.1. Each of the following events shall constitute an "“Event of Default" ” under this Mortgage:
(a) Failure of Mortgagor to make any payment required to be made by it hereunder, within thirty (30) days of the date when due;
(b) Failure of Mortgagor to observe or perform any covenant, agreement, undertaking, performance or obligation of any provision hereof or if Mortgagor shall in any other way be in default hereunder or under any of the Loan Documents, except as otherwise specifically provided herein, and such failure continues for forty five (45) days after receipt by Mortgagor of written notice from Mortgagee specifying such failure; or
(c) Failure of Mortgagor to provide the insurance required in Article IV hereof; or
(d) The occurrence of an Event of Default as defined in the Loan Agreement; or
(e) Any assignment for the benefit of creditors made by Mortgagor; or
(f) Appointment of a custodian, receiver, liquidator or trustee of Mortgagor or of any of the property of Mortgagor; insolvency of Mortgagor; the filing by or against Mortgagor of any petition for the bankruptcy, reorganization or arrangement of Mortgagor pursuant to the Federal Bankruptcy Code or any similar federal or state statute and, in the case of any such petition filed against Mortgagor, such petition is not dismissed within ninety (90) days; or the institution of any proceeding for the dissolution or liquidation of Mortgagor.
7.2. Upon the occurrence of which an Event of Default, Mortgagee shall entitle have the Lender right and is hereby authorized, but without any obligation to pursue do so, to perform the defaulted obligation and to discharge Mortgagor’s obligations on behalf of Mortgagor, and to pay any sums necessary for that purpose, and the sums so expended by Mortgagee shall be an obligation of Mortgagor, shall bear interest at the rate of interest set forth in the Loan Agreement, be payable on demand, and be added to the Obligations. Mortgagee shall be subrogated to all rights the rights, equities and remediesliens discharged by any such expenditure. Such performance by Mortgagee on behalf of Mortgagor shall not constitute a waiver by Mortgagee of such default and shall not limit Mortgagee’s rights, legal remedies and equitablerecourses hereunder, available or the Obligations, or as otherwise provided at law or in equity. Notwithstanding that the Obligations shall not have been declared due and payable upon any such default, the Obligations shall bear interest at the rate of interest set forth in the Loan Agreement from the date of notice and demand therefor by Mortgagee until such default shall have been completely cured and removed to it under any Loan Document or otherwisethe satisfaction of Mortgagee.
7.3. The Occurrence Upon the occurrence of an Event of Default, the entire unpaid balance of the principal, accrued interest and all other sums secured by this Mortgage, shall, at the option of Mortgagee, become immediately due and payable without notice or demand and Mortgagee shall have and may exercise all the rights and remedies permitted by law, including without limitation the right to foreclose this Mortgage, and proceed thereon to final judgment and execution thereon for the entire unpaid balance of said Obligations, with interest, at the rate of interest set forth in the Loan Agreement and pursuant to the methods of calculation specified in the Loan Agreement, together with all other sums secured by this Mortgage, all costs of suits, interest at the rate of interest set forth in the Loan Agreement on any judgment obtained by Mortgagee from and after the date of any Sheriff’s Sale of the Mortgaged Property until actual payment is made by the Sheriff of the full amount due Mortgagee, and reasonable attorney’s fees, without further stay, any law, usage, or custom to the contrary notwithstanding. In any such foreclosure proceedings, the Mortgaged Property shall be sold, at the sole option of Mortgagee, either (a) in one lot or unit and, as an entirety; or (b) in such lots or units and in such order and manner as may be required by law; or (c) in the absence of any such requirement, in such lots or units and in such order and manner as Mortgagee may determine in its sole discretion.
7.4. Upon the occurrence of an Event of Default, Mortgagee shall have the right, without further notice or demand and without the appointment of a receiver, to enter immediately upon and take possession of the Mortgaged Property, without further consent or assignment of Mortgagor or any subsequent owner of the Mortgaged Property, with the right to let the Mortgaged Property, or any part thereof, and to collect and receive all of the rents, issues, profits and other amounts due or to become due to Mortgagor or any such subsequent owner and to apply the same in such order of priority as Mortgagee shall determine at its sole option, after payment of all necessary charges and expenses in connection with the operation of the Mortgaged Property (including any managing agent’s commission), on account of interest, principal, taxes, water charges and assessments, insurance premiums and any advances for improvements, alterations or repairs or otherwise pursuant to the terms hereof for the account of Mortgagor, or on account of the Obligations. Mortgagee may institute legal proceedings against any tenant of the Mortgaged Property who fails to comply with the provisions of his lease. If Mortgagor or any such subsequent owner is occupying the Mortgaged Property or any part thereof, such Mortgagor or subsequent owner will either immediately vacate and surrender possession thereof to Mortgagee or pay to Mortgagee a reasonable rental for the use thereof, monthly in advance, and, in default of so doing, such Mortgagor or subsequent owner may be dispossessed by legal proceedings or otherwise.
7.5. All monies received by Mortgagee by virtue of the assignments made herein to Mortgagee, after payment therefrom of the costs and expenses incident to the enforcement or collection of the assigned rights or claims, shall be applied to the payment of the Obligations.
7.6. Upon the occurrence of an Event of Default, Mortgagee may proceed to protect and enforce its rights under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted, or for the foreclosure of this Mortgage and the sale of the Mortgaged Property under the judgment or decree of a court of competent jurisdiction, or for the enforcement of any other right as Mortgagee shall deem most effectual for such purpose. The foregoing rights shall be in addition to, and not in lieu of, the rights of Mortgagee as a secured creditor under the UCC with respect to any portion of the Mortgaged Property which is subject to the UCC. Mortgagee may also proceed in any other manner permitted by law to enforce its rights hereunder and under the Loan Agreement of even date herewith.
7.7. No failure or delay on the part of Mortgagee in exercising any right, power or privilege under this Mortgage, and no course of dealings between Mortgagor and Mortgagee, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No notice to or demand on Mortgagor shall entitle Mortgagor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of Mortgagee to any other or further action in the same or other circumstances without notice or demand.
7.8. In any action to foreclose this Mortgage, Mortgagee, to the fullest extent permitted by law, shall be entitled as a matter of right to the appointment of a receiver of the Mortgaged Property and of the rents, revenues, issues, income and profits thereof, without notice or demand, and without regard to the adequacy of the security for the Obligations or the solvency of Mortgagor.
7.9. Upon the occurrence of any Event of Default, Mortgagor shall pay monthly in advance to Mortgagee, or to any receiver appointed at the request of Mortgagee to collect the rents, revenues, issues and profits of the Mortgaged Property, the fair and reasonable rental value for the use and occupancy of the Mortgaged Property or of such part thereof as may be possessed by Mortgagor. Upon default in payment thereof, Mortgagor shall vacate and surrender possession of the Mortgaged Property to Mortgagee or such receiver, and upon a failure so to do may be evicted by summary proceedings, in the manner hereinabove provided or otherwise.
7.10. The rights and remedies of Mortgagee expressed or contained in this Mortgage are cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy Mortgagee may now or hereafter have at law or in equity. The covenants of this Mortgage shall run with the land and bind Mortgagor and, unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, its successors and assigns and all subsequent owners, encumbrancers, tenants and subtenants of the Mortgaged Property and shall inure to the benefit of Mortgagee and its successors and assigns and all subsequent holders of this Mortgage and the Obligations.
7.11. Mortgagee may in its discretion from time to time grant to Mortgagor indulgences, forbearances and extensions of the Obligations, may release, with or without consideration, any portion of the Mortgaged Property from the lien hereof, and may accept other and further collateral security for the payment of and strict and faithful performance of the Obligations, all without otherwise affecting the lien or priority of this Mortgage, and the release of any portion of the Mortgaged Property from the lien hereof shall not affect the lien of this Mortgage with respect to the remainder of the Mortgaged Property.
7.12. Mortgagor hereby waives and relinquishes the benefits of all present and future laws (i) exempting the Mortgaged Property or any other property or any part of the proceeds of sale thereof from attachment, levy or sale on execution; (ii) staying execution or other process; and (iii) requiring valuation or appraisement of the Mortgaged Property or any other property levied or sold upon execution under any judgment recovered for the Obligations. Notwithstanding the foregoing, Mortgagor hereby agrees to pay all fees and costs incurred by Mortgagee in connection with exercising its rights under this Mortgage (including, without limitation, attorneys’ fees), and Mortgagor shall be so obligated before or after a judgment has been rendered against Mortgagor by Mortgagee hereunder.
7.13. The Mortgagor acknowledges and agrees that the occurrence of an Event of Default under the terms of this Agreement Mortgage shall constitute a default under each and every of the other Loan Document. The Lender's rights Documents and remedies are cumulative and may be exercised concurrently under any documents, instruments or successively from time to time. Any action agreements (the “Other Agreements”), whether evidencing any other loan now existing or hereafter made by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Mortgagee to the LenderMortgagor, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such , and a default has not been cured prior to under the expiration other Loan Documents or any of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, them or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties Other Agreements shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default under this Mortgage. The security interests, liens and other rights and interests in and relative to any of the collateral now or (C) upon hereafter granted to the death Mortgagee by the Mortgagor by or disability in any instrument or agreement, including but not limited to this Mortgage and the other Loan Documents, shall serve as security for any and all liabilities of Xxxxx X.the Mortgagor to the Mortgagee, including but not limited to the liabilities described in this Mortgage and the other Loan Documents, and, for the repayment thereof, the Mortgagee may resort to any security held by it in such order and manner as it may elect.
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Blonder Tongue Laboratories Inc), Mortgage and Security Agreement (Blonder Tongue Laboratories Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under 10.1 Notwithstanding anything hereinabove to the contrary, the Lender may terminate this Agreement, Financing Agreement immediately upon the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The following Events of Default are as followsDefault:
(a) Failure failure of the Borrower to pay any of the principal or interest Obligations within three (3) days of the due date thereof, provided that nothing contained herein shall prohibit the Lender from charging such amounts to the Revolving Loan Account on the Borrower's present due date thereof;
(b) any representation or future indebtedness warranty made or deemed to be made by the LenderBorrower or any Guarantor under this Financing Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed to be made;
(c) the Borrower or any Guarantor shall fail to perform or observe any term, whether covenant or not arising pursuant agreement contained in this Financing Agreement or any other Loan Document on its part to this Agreement, when be performed or observed and as the same such failure shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of remain unremedied for ten (10) days following the date upon which the Lender gives the Borrower after written Notice of Default. In this Section 9, Notice of Default notice thereof shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by the Lender;
(d) a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to breach by the Borrower by facsimile or any Guarantor of any representation, warranty, covenant or obligation under any Material Agreement (to both numbers set forth other than the non payment of interest under the Indentures), any mortgage of any real property or any collective bargaining agreement which breach could result in Section 16.7a Material Adverse Effect and which remains unremedied within the applicable period provided for in such agreement;
(e) a default or by depositing event of default under the same Bond Indenture which remains unremedied within the applicable period provided for in the United States mail, postage prepaid, for delivery to the Borrower.Bond Indenture;
(bf) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations failure of the Borrower or any Guarantor to pay any third partyand all Royalties, Taxes and Priority Payables when due, unless failure to pay such amounts is disclosed to the same is Lender, being diligently contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves sufficient to prevent any enforcement with respect to such Indebtedness or other obligations.same and adequate reserves have been established in accordance with GAAP;
(dg) The discovery by if the Lender Borrower or any Guarantor breaches or is in violation of any material inaccuracy Authorization, Law or industry standard, in any statement, assurance, representation, covenant, warranty, term connection with the operation of its business which breach or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy violation would result in have a Material Adverse Effect and which remains unremedied for ten (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.10) days;
(eh) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretoGuarantor shall: (i) admit in writing its inability to pay its debts generally, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of make a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors; (ii) file a notice of intention to file a proposal under any Law relating to bankruptcy, insolvency or reorganization or relief of creditors; (iii) institute or have instituted against it any proceeding seeking (x) to adjudicate it a bankrupt or insolvent, (y) any 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 (z) the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its Assets, and, in the case of any such proceeding instituted against it (but not instituted by it), such proceeding shall remain undismissed or unstayed for a period of ten (10) days or any of the actions sought in such proceeding (including the entry of an 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 Assets) shall occur; or (iv) take any action to authorize any of the foregoing events;
(i) any legally binding judgment or order for the payment of money in excess of $5,000,000 shall be rendered against the Borrower or any Guarantor and, if such judgment remains unpaid, either: (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order; or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(j) any failure to deal with any money in accordance with the cash management and Blocked Accounts arrangements contemplated in this Financing Agreement other than if the Borrower and the Guarantors provide their customers with appropriate notice and instructions in order to comply with such cash management and Blocked Accounts arrangements and notwithstanding such notice and instructions, a customer inadvertently uses the old, incorrect wire transfer instructions and other than in respect of inadvertent clerical errors or inadvertent errors made by The Toronto-Dominion Bank (or any other similar law or regulationapplicable cash management bank), whether federal, state or local, not dismissed within 30 days.which are forthwith rectified;
(gk) The garnishmentthe loss, attachmentdamage, levy destruction or other similar action taken by or on behalf confiscation of any creditor material part of the Borrower, any Affiliate, 's Collateral or any of their respective properties which could have the Guarantor's Collateral, unless upon such event, at the option of the Lender, the Borrower or the applicable Guarantor pays to the Lender such amount as the Lender in its absolute and sole discretion determines is satisfactory, including insurance proceeds forthwith upon receipt of such insurance proceeds, if any; or
(l) if any execution, sequestration, garnishment, claim, extent or other process of any court, tribunal or other Person becomes enforceable against the Borrower or any Guarantor for an amount in excess of $5,000,000 or if a Material Adverse Effectdistress or analogous process for an amount in excess of $5,000,000 becomes enforceable against or is levied upon the Collateral or the Guarantor Collateral and with respect to any such enforcement before judgement under the Laws of the Province of British Columbia, is not stayed or dismissed within fifteen (15) days after the date of such enforcement before judgement.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon 10.2 Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default which is continuing, the Lender may declare that the Revolving Line of Credit provided for in this Financing Agreement, and the obligation of the Lender to make Revolving Loans, assist with the opening of Letters of Credit and provide Letter of Credit Guarantees or (C) make other accommodations of credit available to the Borrower, shall immediately terminate and cease without any further notice or demand to the Borrower or Guarantors whatsoever and, for greater certainty, it is hereby understood and agreed by the Borrower and the Guarantors that the Revolving Line of Credit shall be capped at the amount of the outstanding Obligations owing on the date and at the time of the occurrence of such Event of Default and at the amount of the outstanding Obligations owing at the end of business of each day thereafter, that no Accommodations shall be made or required to be made, notwithstanding any margining availability calculated in accordance with the terms and provisions hereof, that the definition of "Revolving Line of Credit" hereunder shall automatically be amended at the end of business of each day accordingly to reflect the revised maximum authorized credit limit established hereunder and that the Borrower shall continue to be required to comply with its obligations under Section 3.4 of this Financing Agreement notwithstanding the termination of the Revolving Line of Credit, unless such Event of Default is waived in writing by the Lender or cured to the Lender's satisfaction in the exercise of the Lender's reasonable judgment. In addition, upon the death occurrence of an Event of Default which is continuing, the Lender may declare that: (a) all Obligations shall become immediately due and payable, including the face amount of all outstanding Letters of Credit and any and all interest accrued thereon up to the date thereof and with respect to BA Equivalent Loans, on a pro-rated basis, given the applicable Interest Period; (b) the Lender may charge the Borrower the Default Rate of Interest on all then outstanding or disability thereafter incurred Obligations in lieu of Xxxxx X.the interest otherwise provided for in this Financing Agreement, provided that, with respect to this Section 10.2 the Lender has given the Borrower written notice of the Event of Default; and
Appears in 2 contracts
Samples: Financing Agreement (Western Forest Products Inc.), Financing Agreement (Western Forest Products Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx Bxxxx X.
Appears in 2 contracts
Samples: Loan Agreement (Baum & Associates /Fa/), Loan Agreement (Baum & Associates /Fa/)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon thirty (1030) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its commercially reasonable sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its commercially reasonable sole discretion, may elect, provided, that any such written notice to sale shall comply with applicable law, and at any such sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Notes. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings 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 Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth Default, the Borrower shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Buyers at a place or places to be designated by the Collateral Agent The rights of the Collateral 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 Collateral Agent may, at its election, seek to enforce such right by an action in subsections 9.1
(a) through 9.1(h) above; equity for injunctive relief or (b) upon specific performance, without the occurrence and continuance requirement of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute {each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The Each of the following events shall constitute ------------------------------ an "Event of Default" under this AgreementNote:
a. Failure by Borrower to pay, as and when the occurrence same shall become due and payable, any payment of which shall entitle principal, interest or both, due hereunder, or on any other obligation owed to Lender, whether upon any regularly scheduled due date, upon acceleration or otherwise; or failure by Borrower to observe or perform any covenant, undertaking or other obligation arising under this Note, or under that certain Amended and Restated Lease Agreement dated as of ________,1999 (the Lender to pursue any "Lease") between Borrower and all rights and remediesLender, legal and equitable, available to it or under any Loan Document other note, agreement or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each other document executed and every other Loan Document. The delivered by Borrower to Lender's rights and remedies are cumulative and may be exercised concurrently , or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other securityperson, property firm or party corporation, in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Note or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the BorrowerLease.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, b. Any warranty, term representation or condition by the Borrower contained in this Agreement statement made or in any document delivered or furnished to be delivered Lender by or on behalf of Borrower in connection with this Note or the Lease proves to have been false in any material respect when made or furnished.
c. If, by the order of a court of competent jurisdiction, a trustee, custodian or receiver of the Borrower shall be appointed.
d. If Borrower shall file a petition in bankruptcy or for an arrangement or reorganization pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Act or any similar law law, federal or regulationstate, whether federalor if, state or local, not dismissed within 30 days.
(f) The commencement by decree of a proceeding by court of competent jurisdiction Borrower shall be ordered a bankrupt, or against the Borrower be declared insolvent, or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall consent to the appointment of a receiverreceiver or receivers. Upon the occurrence of an Event of Default, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, option may without notice to Borrower, declare immediately due and payable the Borrower:
entire unpaid balance of principal and interest outstanding under this Note, together with all other obligations of Borrower to Lender; whereupon Lender may exercise each of its rights and remedies under any of the documents which evidence or relate to this Note (aincluding without limitation the Lease) upon and as otherwise may be provided at law or in equity. Failure to exercise this remedy shall not constitute a waiver of the occurrence right to exercise the same at any other time. The remedies of Lender as provided herein and continuance in any other documents given in connection with this Note shall be cumulative and concurrent, and may be pursued singularly, successively or together at the sole discretion of Lender, and may be exercised as often as occasion therefor shall occur, and the failure to exercise any Event of Default set forth such right or remedy shall in subsections 9.1
(a) through 9.1(h) above; no event be construed as a waiver or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.release thereof.
Appears in 1 contract
Samples: Lease Agreement (Liposcience Inc)
Events of Default and Remedies. 9.1 The following events shall constitute Class A Indenture will define an "Event of Default" under Default to have occurred whenever, among other things, Jamboree LLC fails to make any payment in respect of principal of or premium on the Class A Notes when the same becomes due and payable and such failure continues for a period of 5 Business Days after the due date of such payment, or fail to make any payment when due of interest on the Class A Notes and such failure continues for a period of 10 days after the due date of such payment; or certain statements made in this AgreementDisclosure Statement or the Collateral Documents prove to contain any untrue statement of a material fact or omit to state a material fact; or Jamboree LLC fails to perform or observe certain terms, covenants or agreements contained in the Class A Indenture, the occurrence of which shall entitle Plan or the Lender Collateral Documents, subject, in certain instances to pursue a 30 day cure period; or Jamboree LLC fails, after any and all rights and remediesapplicable grace period, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the any principal of or premium, if any, or interest on the Borrower's present Class B Senior Subordinated Secured Notes or future indebtedness to any of its other Indebtedness, in an amount exceeding $200,000 (excluding the Lender, whether or not arising pursuant to this AgreementClass A Notes), when and as the same shall becomes due and payable; or any other event occurs or condition exists under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate the maturity of such Indebtedness; or any such Indebtedness is declared to be due and payable, whether or required to be prepaid (other than by acceleration or otherwise; provided that such default has not been cured a regularly scheduled required prepayment), prior to the expiration stated maturity thereof; or certain events of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9bankruptcy, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, insolvency or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves reorganization occur with respect to Jamboree LLC; or any final judgment or order for the payment of money in excess of $100,000 amount is rendered against Jamboree LLC and either enforcement proceedings have been commenced by any creditor upon such Indebtedness judgment or other obligations.
order or 30 consecutive days shall have passed without a stay of such judgment or order; or the Class A Indenture or the Collateral Documents, for any reason, cease to create a valid first priority lien (d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or except for liens expressly permitted to be delivered by or on behalf senior to the New Deed of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies Trust in the Borrower's Due Diligence Documents attributable Class A Indenture and the Collateral Documents) on collateral with respect to the fault Class A Notes having a value in excess of $100,000; or neglect Jamboree LLC fails to pay any Imposition prior to delinquency or, if Jamboree LLC is prohibited by law from paying such Imposition, Jamboree LLC fails to pay such Imposition within 180 days of third-parties Jamboree LLC's receipt of notice of such prohibition; or Jamboree LLC shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief fail to perform its obligations under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seqPlan., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Disclosure Statement (Jamboree LLC)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event of Default" Default under this Agreement, the occurrence of which shall entitle the Subordinated Lender to pursue any and all rights and remedies, legal and equitable, remedies available to it under this Agreement, any of the other Subordinated Loan Document Documents, by statute or otherwisein law or equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Subordinated Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Subordinated Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay make any payment as and when due under the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payableSubordinated Note, whether by acceleration or otherwise; , provided in each case that such default has not been cured prior to the expiration of ten (10) 10 days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery or mailing of written notice of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery default to the Borrower.
(b) Failure to make any payment as and when under any document evidencing indebtedness of the Borrower to the Subordinated Lender other than the Subordinated Note, whether by acceleration or otherwise, provided in each case that such default has not been cured prior to the expiration of 10 days following the date of personal delivery or mailing of written notice of such default to the Borrower.
(c) Failure to observe, perform and comply with any of the Borrower's obligations evidenced or secured by a under any Subordinated Loan Document, other than as provided in Sections 9.1(asubsections 7.1(a) and 7.1(b) above; provided that such default has not been cured prior to the expiration of thirty (30) 20 days following the date upon which the Lender gives the Borrower of personal delivery or mailing of written Notice notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsdefault.
(d) The discovery Failure to observe, perform and comply with any of the Borrower's obligations under any Senior Loan Document, provided that such default has not been cured after the expiration of any applicable cure period provided by the Lender Senior Loan Documents.
(e) The existence of any a material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Subordinated Loan Document, or in any other agreement between the Borrower and the Lender.
(ef) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.U.S.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The following events shall constitute an term "Event of Default" ", wherever used herein, shall mean any of the following events under this Agreement, the occurrence of which shall entitle the Lender Lease: (i) Lessee breaches its obligation to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document pay Rent or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, sum when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior fails to cure the expiration of breach within ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such after written notice from Lessor to a Guarantor, Lessee; or (ii) on the date on which a duly authorized representative Lessee breaches any of the Borrower acknowledges receipt of such written notice, its insurance obligations under Section 10; or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with Lessee breaches any of the its other obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided and fails to cure that such default has not been cured prior to the expiration of breach within thirty (30) days following the date upon which the Lender gives the Borrower after written Notice of Default.
notice from Lessor to Lessee (c) Failure to duly except that so long as Lessee is proceeding diligently and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith towards curing such breach and is in fact making progress towards curing such breach, then Lessee shall have such additional time, not to exceed sixty (60) additional days, as is necessary to cure such breach); or (iv) any representation or warranty made by appropriate proceedings and the Borrower has set aside on its books adequate reserves Lessee in connection with respect to such Indebtedness this Lease shall be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligations.
obligor for any of the obligations hereunder (dcollectively "GUARANTOR") The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term becomes insolvent or condition by the Borrower contained in this Agreement ceases to do business as a going concern; or in any document delivered or to be delivered (vi) a petition is filed by or on behalf against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within forty-five (45) days of the Borrower pursuant to this Agreementfiling date; or (vii) if Lessee or any Guarantor is a natural person, which inaccuracy would result any death or incompetency of Lessee or such Guarantor; or (viii) Lessee breaches or is in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in default under any other agreement by and between the Borrower Lessor and the LenderLessee.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Terayon Communication Systems)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute or circumstances constitutes an "event of default (each, an “Event of Default" ”):
(i) the Owners fail to sell and deliver Refined Silver to Silver Wheaton in accordance with Section 5 of this Agreement within five (5) Business Days of the date by which the Owners are required to sell and deliver Refined Silver;
(ii) the Owners do not perform and complete a Completion Test on or before the six (6) month anniversary of the Targeted Completion Date and/or, at any time during the period that is thirty (30) months from the Targeted Completion Date, the Owners perform and complete a Completion Test with results that are less than fifty percent (50%) of the Initial Targeted Capacity;
(iii) the Owners do not perform and complete a new Completion Test within six (6) months of the thirty (30) month anniversary of the Targeted Completion Date and/or if, at any time during the period between the date that is thirty (30) months from the Targeted Completion Date and the date that is the Outside Completion Date, the Owners perform and complete a Completion Test with results that are less than fifty percent (50%) of the Final Targeted Capacity;
(iv) if applicable, the Owners do not deliver the amount of Refined Silver required under Sections 8(b) or (d);
(v) the Owners fail to pay the Capacity Related Refund in accordance with Section 8(f);
(vi) the Water Licence has not been issued to and in the name of the an Owner by December 31, 2010;
(vii) the Owners are in breach or default of any of its representations, warranties, covenants or obligations set forth in this Agreement in any material respect, including the delivery of Monthly Reports and Annual Reports in accordance with the terms of this Agreement, and such breach or default is not remedied within the occurrence Cure Period;
(viii) Alexco is in breach or default of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document of its representations or otherwise. The Occurrence of an Event Default under warranties set forth in this Agreement shall constitute a in any material respect and such breach or default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by is not remedied within the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:Cure Period;
(aix) Failure to pay the principal Alexco is in breach or interest on the Borrower's present default of any of its covenants or future indebtedness to the Lenderobligations set forth in this Agreement in any material respect, whether or not arising pursuant to this Agreement, when other than its covenants and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers obligations set forth in Section 16.718 of this Agreement, and such breach or default is not remedied within the Cure Period;
(x) Alexco is in breach or default of any of its covenants or obligation set forth in Section 18 of this Agreement;
(xi) the Existing Alexco Entities are in breach or default (or an event which with notice or lapse of time or both would become a default) under any of the Silver Wheaton Security Agreements or any Permitted Initial Project Financing or the GSA;
(xii) the conditions set forth in Section 3(c) have not been satisfied in full on or before the date that is ninety (90) days from the Effective Date;
(xiii) the conditions set forth in Section 3(d) have not been satisfied by depositing the same in Owners by December 31, 2009; and
(xiv) upon the United States mailoccurrence of an Insolvency Event affecting either or both of the Owners or Alexco; provided that any action under any bankruptcy or insolvency law which is frivolous or vexatious, postage prepaid, for delivery which is contested by the Party made subject to the BorrowerInsolvency Event in good faith and which is discharged or dismissed within sixty (60) days from commencement, shall not constitute an Insolvency Event for the purpose of this section.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default occurs and is continuing, Silver Wheaton shall have the right, upon written notice to the Owners, at its option and in addition to and not in substitution for any other remedies available at law or equity, to demand repayment of the outstanding balance of the Deposit, if any, calculated under Section 3(f), at the time of the occurrence of such Event of Default, together with any and all damages or losses resulting or arising from the occurrence of an Event of Default (C) the “Default Fee”). The Default Fee shall accrue interest at a rate of [PROPRIETARY TERMS – REDACTED FOR CONFIDENTIALITY] per annum, compounded monthly, from the date of demand until the Default Fee is paid in full. Upon demand from Silver Wheaton, which demand shall include a calculation of the Default Fee, the Owners shall promptly pay the Default Fee to Silver Wheaton by wire transfer, in immediately available funds, to a bank account designated by Silver Wheaton. For greater certainty, in the event the Owners are required to pay the Default Fee under this Section 20(b), the provisions of Section 3 requiring the payment of a Deposit Refund will no longer be applicable and upon payment of the death or disability Default Fee to Silver Wheaton then the obligation of Xxxxx X.the Owners to sell Refined Silver to Silver Wheaton, as set out in Section 2(a), will no longer be applicable.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one of an "“Event of Default" under ”), Landlord shall have the right to exercise any rights or remedies available in this AgreementLease, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document at law or otherwisein equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall include:
(ai) Failure Tenant’s failure to pay any rental or other sum of money payable hereunder within five (5) days after same becomes due; provided, however, Tenant shall be entitled to written notice from Landlord that such rental or other sum is past due not more than once in any twelve (12) month period and it shall not be deemed an Event of Default hereunder so long as Tenant cures such failure within five (5) days after receipt of said written notice from Landlord;
(ii) Tenant’s conveyance, assignment, sublease or mortgage of the principal Premises (or interest on any part thereof) or the Borrower's present Lease, or future indebtedness its attempt to undertake any of the Lenderforegoing, whether without the prior written consent of Landlord;
(iii) Tenant’s failure to maintain the insurance coverage required by Section 10, above;
(iv) Tenant having become bankrupt or not arising insolvent, or having filed any debtor proceedings, or filed pursuant to this Agreementany statute a petition in bankruptcy or insolvency or for reorganization, when or filed a petition for the appointment of a receiver or trustee for all or substantially all of Tenant’s assets and as the same such petition or appointment shall be due and payable, whether by acceleration or otherwise; provided that such default has not have been cured prior to the expiration of ten set aside within sixty (1060) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on from the date of personal delivery of such written notice to a Guarantorpetition or appointment, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement; or
(v) Tenant’s failure to perform any other of the appointment terms, covenants or conditions contained in this Lease if not remedied within thirty (30) days after receipt of a receiverwritten notice thereof, or any other similar law if such default cannot be remedied within such period, Tenant does not within thirty (30) days after written notice thereof commence such act or regulation, whether federal, state acts as shall be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or local, not dismissed acts within 30 daysninety (90) days after written notice thereof.
(gb) The garnishment, attachment, levy or other similar action taken by or on behalf Upon the occurrence of any creditor Event of Default, Landlord, with or without terminating this Lease (except as set forth below), immediately or at any time thereafter, shall have the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayright, at its option, terminate its obligation to make advances utilize any one or more of the Loan, without notice to the Borrowerfollowing remedies:
(ai) upon Landlord may make any payment required of Tenant and/or re-enter the occurrence Premises and continuance correct or repair any condition which shall constitute a failure on Tenant’s part to keep or perform. Tenant shall reimburse Landlord for any reasonable expenditures made by Landlord in making the payment and/or corrections or repairs within thirty (30) days after delivery of a statement to Tenant accompanied by reasonable documentation supporting the demand.
(ii) Landlord may demand in writing that Tenant vacate the Premises. Tenant shall vacate the Premises and remove all its property within ten (10) business days of Tenant’s receipt of the notice, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
(iii) If Landlord terminates the Lease as the result of any Event of Default set forth in subsections 9.1Default, Landlord may accelerate and collect all Base Rent, Additional Rent, and other charges which are due or may become due under the Lease for the balance of the Term, after first deducting the fair market value of the Premises for the balance of the Term from the remaining Base Rent and Additional Rent and then discounting the difference to its present value by a factor equal to Landlord’s bank’s then announced prime rate.
(aiv) through 9.1(hLandlord may re-enter the Premises and remove Tenant and all of Tenant’s property.
(v) above; Landlord may re-let all or (b) upon any portion of the occurrence Premises for such time, rent, and continuance other terms and conditions as Landlord, in its reasonable discretion, may deem advisable. Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate the reletting. Tenant shall pay all commercially reasonable costs of the reletting including the commercially reasonable cost of any alterations or repairs to the Premises. If this Lease shall have not been terminated by Landlord, Tenant shall continue to pay all charges due from Tenant 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 Premises, and thereafter Tenant shall pay monthly during the remainder of the Term the difference, if any, between the rent collected from any subsequent tenant or tenants and the rent reserved in this Lease. In no event which, with shall Tenant be entitled to receive any excess of any rents collected by Landlord over the giving of rents due from it.
(vi) Landlord may terminate this Lease without separate notice or demand to vacate the lapse Premises. This Lease shall be deemed to have been terminated by Landlord only upon Landlord’s written notice of timetermination. Upon termination Landlord shall nevertheless remain entitled to recover from Tenant all sums provided for in subparagraph (v) above as if the Lease were not terminated.
(c) In the event of any re-entry of the Premises by Landlord pursuant to any of the provisions of this Lease, Tenant waives all claims for damages which may be caused by that re-entry except those claims arising from the Landlord’s gross negligence or bothwillful misconduct. Tenant shall reimburse the Landlord for any and all losses, would constitute an costs, expenses (including legal expenses and reasonable attorneys’ fees), and damages suffered by Landlord by reason of its re-entry, removal and/or storage of Tenant’s property. No re-entry shall be considered or construed to be a forcible party.
(d) Upon any Event of Default or (C) upon by Tenant, Landlord shall be reimbursed for any and all commercially reasonable expenses incurred by Landlord, including without limitation court costs and attorneys’ fees, in enforcing the death or disability terms and provisions of Xxxxx X.this Lease.
Appears in 1 contract
Samples: Office Lease Agreement (Dova Pharmaceuticals, Inc.)
Events of Default and Remedies. 9.1 The following events (a) Notwithstanding anything to the contrary stated herein, the Collateral Agent shall constitute not exercise any of the remedies set forth in this Agreement unless and until an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any Default has occurred and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:is continuing.
(a) Failure If an Event of Default shall have occurred and be continuing:
(i) The Collateral Agent may exercise in respect of the Pledged Collateral, in addition to pay other rights and remedies provided for herein or in the principal or interest on the Borrower's present or future indebtedness to the LenderNote Documents, whether or not arising pursuant to this Agreement, when and as the same shall case may be due or otherwise available to it, all the rights and payableremedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Collateral Agent may also, whether by acceleration without notice except as specified below, sell the Pledged Collateral or otherwise; any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable, provided that such default has not been cured prior to the expiration of at least ten (10) days following days’ prior written notice of the date upon which the Lender gives the Borrower written Notice time and place of Default. In this Section 9, Notice of Default any such sale shall be deemed given to have the Pledgor. The Collateral Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given (i) on given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the date of personal delivery of time and place fixed therefor, and such written notice sale may, without further notice, be made at the time and place to a Guarantor, or which it was so adjourned.
(ii) on Any cash held by the date on which a duly authorized representative Collateral Agent as Pledged Collateral and all cash proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Borrower acknowledges receipt Pledged Collateral may, in the discretion of the Collateral Agent, be held by the Collateral Agent as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Collateral Agent pursuant to Section 10) in whole or in part by the Collateral Agent against, all or any part of the Notes Obligations in accordance with the terms of the Indenture. Any surplus of such written notice, cash or (iii) on cash proceeds held by the day Collateral Agent and remaining after sending such written notice payment and performance in full of the Notes Obligations shall be paid over to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Pledgor or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerits order.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Events of Default and Remedies. 9.1 1. The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure if there is a failure to pay comply with any of the covenants contained in this Agreement or any of the Security Instruments;
(b) if any installment of principal or interest on the Borrower's present or future indebtedness to the Lender, whether or Note is not arising pursuant to this Agreement, paid as and when and as the same shall be is due and payable, whether by acceleration ;
(c) if at any time any representation or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default warranty shall be deemed to have incorrect which has been given (i) on the date of personal delivery of such written notice to a Guarantor, made by Borrower herein or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced Security Instruments; or secured any representation, statement (including financial statement), certificate or data furnished or made by a Loan DocumentBorrower (or any officer,
(d) if the construction of the Improvements be at any time discontinued or not carried on with reasonable dispatch to such an extent that it is unlikely in Lender's reasonable judgment that they will be completed by the Completion Date;
(e) if any of the materials, other than fixtures or articles used in the construction of the Improvements or the appurtenances thereto, or to be used in the operation thereof, be not substantially in accordance with the Plans as provided approved by the Architect and Lender;
(f) if the Improvements, in Sections 9.1(a) above; provided that such default has the exclusive reasonable judgment of Lender and the Independent Supervising Architect, will not been cured prior to the expiration of be completed on or before thirty (30) days following after the date upon which the Lender gives the Borrower written Notice of Default.stated Completion Date;
(cg) Failure if Borrower is unable to duly and punctually pay, observe and discharge all Indebtedness and other obligations satisfy any condition of the Borrower right to any third party, unless the same is being contested receipt of an advance hereunder for a period in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.excess of 30 days;
(dh) The discovery if Borrower shall (i) apply for or consent in writing signed by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term Borrower or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable duly authorized attorney to the fault appointment of a receiver, trustee, custodian or neglect liquidator of third-parties shall not constitute Borrower, the Premises or Improvements or any part thereof; or (ii) file a breach of this Section 9.1(d))voluntary petition in bankruptcy, or in any other Loan Document, fail to generally pay its debts as such debts become due; or in any other agreement between the Borrower and the Lender.
(eiii) The filing of make a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors, or (iv) file a petition or answer seeking reorganization or rearrangement with creditors or taking advantage of any insolvency law; or (v) file an answer admitting the appointment material allegations of a petition filed against Borrower in any bankruptcy, reorganization, insolvency or similar proceeding; or
(i) if an order, judgment or decree shall be entered by any court of competent jurisdiction or by any other duly authorized authority on the application of a creditor or otherwise, adjudicating Borrower as bankrupt or insolvent or approving a petition seeking reorganization of Borrower or appointing a receiver, trustee or liquidator of the Premises or Improvements or of all or any other similar law substantial part of the assets of Borrower, and such order, judgment or regulation, whether federal, state or local, not dismissed within 30 decree shall continue unstayed and in effect for any period of thirty (30) consecutive days.
(g) The garnishment2. Lender shall have the right, attachment, levy or other similar action taken by or on behalf upon the happening of any creditor such Event of Default, notwithstanding any cure period which may be provided for in this Agreement or in the Note, and in addition to any rights or remedies available to it under any of the BorrowerSecurity Instruments, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control to enter into possession of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed Premises and perform any and all work and labor necessary to complete the Improvements substantially in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, accordance with the giving of notice or Plans and employ watchmen and protect the lapse of timePremises and the Improvements; all sums so expended by Lender shall be deemed to have been paid to Borrower and secured by the Security Instruments. For this purpose, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.Borrower hereby constitutes and appoints
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Each of the following events or conditions shall constitute be an "“Event of Default" ” under this Agreement, :
(i) any failure by the occurrence of which shall entitle Borrower or the Lender Guarantor to pursue pay when due any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default amount owing under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure if such failure to pay is not cured within two (2) Business Days after the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, date when and as the same shall be due and payable, whether by acceleration or otherwisedue; provided that such default has the Borrower may not been cured prior avail itself of the foregoing two (2) Business Day cure period more than once in any twelve (12) month period;
(ii) any failure by the Borrower to comply with its obligations under Section 10.02(a) (Notice of Defaults);
(iii) any representation or warranty made or deemed made by the Borrower or the Guarantor in any Finance Document or in connection herewith, or any statement made in any certificate, report, or financial statement furnished by the Borrower or the Guarantor to the expiration Ex-Im Facility Agent or Ex-Im Bank, or any statement made in the legal opinions of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9or the Guarantor concerning facts relating to the Borrower or the Guarantor, Notice of Default shall be deemed as the case may be, or the transactions contemplated hereby, has proven to have been given (i) on the date of personal delivery of such written notice to a Guarantor, false or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or misleading in any material respect when made;
(iv) on the third day after sending such written notice to (A) any failure by the Borrower by facsimile (to both numbers set forth in Section 16.7) perform or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced covenants or secured by provisions set forth in this Agreement or any other Finance Document (exclusive of (I) any events specified as an Event of Default in any other subsection of this Section 11.03(a) and (II) Sections 10.02(v) (Prohibited Use) and 10.03(m) (Prohibited Entity)), which failure, if capable of being cured, remains uncured for a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following the date upon which the Lender gives after (x) Ex-Im Bank has received notice thereof from the Borrower or (y) Ex-Im Bank or the Ex-Im Facility Agent has given written Notice of Default.
notice thereof to the Borrower or (cB) Failure any failure by the Guarantor to duly and punctually pay, observe and discharge all Indebtedness and other obligations perform or comply with any of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has covenants or provisions set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained forth in this Agreement or any other Finance Document (exclusive of any events specified as an Event of Default in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach other subsection of this Section 9.1(d11.03(a)), which failure, if capable of being cured, remains uncured for a period of forty-five (45) days after (x) Ex-Im Bank has received notice thereof from the Guarantor or (y) Ex-Im Bank or the Ex-Im Facility Agent has given written notice thereof to the Guarantor.
(v) any failure by the Borrower to pay when due, after giving effect to any period of grace provided to the Borrower with respect thereto, any amounts in any other Loan Document, or in excess of $1,000,000 payable under any other agreement between or instrument providing for the payment by the Borrower and of borrowed money or for the Lender.
deferred purchase price of property or services received (e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretoexcluding trade payables), or any similar law or regulationsuch amount has, whether federalprior to the stated maturity thereof, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiverbecome due, or any other similar law event specified in any such agreement or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf instrument shall occur the effect of any creditor of the Borrower, any Affiliatewhich event is to cause, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of timetime or both) to permit any Person to cause, such amounts to become due, or to be repaid in full, prior to their stated maturity;
(vi) any failure by the Guarantor to pay when due, after giving effect to any period of grace provided to the Guarantor with respect thereto, any amounts payable under any other agreement or instrument providing for the payment by the Guarantor of borrowed money, or for the deferred purchase price of property or services received (excluding trade payables), in an aggregate principal amount exceeding $25,000,000, or any such amount has, prior to the stated maturity thereof, become due, or any event specified in any such agreement or instrument shall continue after the applicable grace period, if any, specified in such agreement or instrument, the effect of which event is to cause, or (with the giving of notice or lapse of time or both) to permit any Person to cause, would constitute an Event such amounts to become due, or to be repaid in full, prior to their stated maturity;
(vii) either the Borrower or the Guarantor shall (A) be unable to pay its debts as they fall due or shall admit in writing its inability to pay its debts as they fall due or shall become insolvent; or the Borrower or the Guarantor shall apply for or consent to the appointment of Default any liquidator, receiver, trustee, or administrator for all or a substantial part of its business, properties, assets, or revenues; or a liquidator, receiver, trustee, or administrator shall be appointed for the Borrower or the Guarantor and such appointment shall continue undismissed, undischarged, or unstayed for a period of sixty (60) days; (B) the Borrower or the Guarantor shall institute (by petition, application, answer, consent, or otherwise) any bankruptcy arrangement, readjustment of debt, dissolution, liquidation, winding up or similar executory or judicial proceeding, or a bankruptcy, arrangement, readjustment of debt, dissolution, liquidation, winding up, appointment of any liquidator, receiver, trustee, or administrator or similar executory or judicial proceeding shall be instituted against the Borrower or the Guarantor and shall remain undismissed, undischarged, or unstayed for a period of sixty (60) days; (C) take any action seeking to take advantage of any other law relating to bankruptcy, insolvency, liquidation, termination, dissolution, winding up, or composition or readjustment of debts; or (D) take any corporate or similar action for the purpose of effecting any of the foregoing;
(viii) any involuntary Lien other than (A) Permitted Liens shall have been created upon the death property of the Borrower or disability (B) Permitted Guarantor Encumbrances shall have been created upon the property of Xxxxx X.the Guarantor, in each case in an amount, the required payment of which by the Borrower or the Guarantor, as the case may be, would, in the judgment of Ex-Im Bank, have a Material Adverse Effect on the Borrower or the Guarantor; and such Lien has not been removed or discharged for a period of thirty (30) days from the earlier of (x) the date the Borrower or the Guarantor has received notice of such Lien or (y) the date the Borrower or the Guarantor has Knowledge of the creation of such Lien;
(ix) any final and non-appealable judgment against the Borrower or the Guarantor shall have been entered on a claim not covered by insurance in an amount in excess of (A) $1,000,000, in the case of the Borrower, or (B) $25,000,000, in the case of the Guarantor; and such judgment has not been removed or discharged for a period of thirty (30) days from the date of its entry;
(x) any Governmental Authority shall have condemned, seized, or expropriated all or substantially all of the property of the Borrower or the Guarantor;
(xi) any authorization, approval, consent, license, exemption, filing, registration, notarization or other requirement of any governmental, judicial or public body or authority necessary to enable the Borrower or the Guarantor to comply with its obligations hereunder or under any other Finance Document shall have been revoked, rescinded, suspended, held invalid or otherwise limited in effect in a manner that would have a Material Adverse Effect; or any law, rule or regulation, decree or directive of any competent authority shall be enacted or issued that shall impair materially and adversely the ability or the right of the Borrower or the Guarantor to perform such obligations; or it shall become unlawful for the Borrower or the Guarantor to perform any such obligations;
(xii) it becomes unlawful or illegal for a party to perform its obligations under a Supply Contract;
(xiii) the Borrower or the Guarantor repudiates this Agreement or any other Principal Transaction Document or does or causes to be done any act or thing evidencing an intention to repudiate this Agreement or any other Principal Transaction Document;
(xiv) the Liens on the Collateral created or purported to be created by the Security Documents shall fail or cease to be validly perfected first priority Liens in favor of Ex-Im Bank and such circumstance continues unremedied for more than five (5) Business Days after the Borrower becomes aware of the same or receives notice of such circumstance from the Ex-Im Facility Agent or Ex-Im Bank;
(xv) any of the Capacity Purchase Agreement, the Management Services Agreement, the ViaSat-2 TT&C Agreement or the Technical Services Agreement shall fail to be in full force and effect prior to their scheduled termination and a replacement agreement in form and substance reasonably satisfactory to Ex-Im Bank is not entered into within sixty (60) days after any such termination;
(xvi) a Change in Control occurs without the prior written consent of Ex-Im Bank; or
(xvii) any other event occurs or any other circumstance arises that has a Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Viasat Inc)
Events of Default and Remedies. 9.1 SECTION 3.1. Remedies in Case of an Occurrence of an Event of Default The following events occurrence of any event, or the existence of any condition, that is specified as an "Event of Default" under the Indenture or any other Security Document shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwisehereunder. The Occurrence of an An Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to occur if the Collateral Agent should receive at any time following the closing of the transaction a Secretary of State's Report indicating that the Collateral Agent's security interest is not prior to all other security interests or other interests reflected in the report, other than Permitted Collateral Liens. If an Event of Default shall have been given occurred and be continuing, Mortgagee may, but shall not be obligated to, in addition to any other action permitted by law (and not limited in any manner by the remedies contained in the Notes and the Indenture), take one or more of the following actions, to the greatest extent permitted by applicable local law:
3.1.1 By written notice to Mortgagor, the Mortgagee may, and shall, upon the request of the holders of not less than 25% in aggregate principal amount of the outstanding Notes, declare the principal of and accrued interest on, all the Secured Obligations to be due and payable immediately;
3.1.2 Personally, or by its agents or attorneys, (i) enter into and upon all or any part of the Mortgaged Property and exclude Mortgagor, its agents and servants wholly therefrom, (ii) use, operate, manage and control the Premises, the Real Estate Fixtures and the Equipment and conduct the business 7thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Mortgagee may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the date business thereof and exercise all rights and powers of personal delivery Mortgagor with respect thereto either in the name of such written notice to a GuarantorMortgagor or otherwise, or (vi) collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and any or every part thereof;
3.1.3 With or without entry, personally or by its agents or attorneys, (i) sell the Mortgaged Property and all estate, right, title and interest, claim and demand therein at one or more sales in one or more parcels, in accordance with the provisions of Section 3.2 or (ii) on institute and prosecute proceedings for the date on which a duly authorized representative complete or partial foreclosure of the Borrower acknowledges receipt Lien and security interests created and evidenced hereby; or
3.1.4 Take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of such written noticeany covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the execution of any power granted in this Mortgage, or (iii) on for any foreclosure hereunder, or for the day after sending such written notice enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. Notwithstanding anything to the Borrower contrary in this Mortgage, if Mortgagor is in breach of a covenant, obligation or representation qualified by a commonly recognized overnight courier serviceMaterial Adverse Effect, then (i) if such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice breach is due to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any existence of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
type referred to in clause (hi) Any change in control of the Borrowerdefinition of such term, Madison Liquidity Investors 104, MACG from that disclosed then Mortgagee shall be entitled to those remedies set forth in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) Article III upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default resulting from such breach, and (ii) if such breach is due to the existence of a Material Adverse Effect of the type referred to in clause (ii) of the definition of such term, then (x) Mortgagee's remedies under this Mortgage shall be limited to an action for specific performance with respect to the performance of such covenant or obligation and (Cy) upon the death or disability such breach shall be deemed not to be and not to give rise to an Event of Xxxxx X.Default.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Pledgee shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Credit Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Pledgee may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker's board or at any of the Pledgee's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable, provided that at least ten (C10) days' prior written notice of the time and place of any such sale shall be given to the Pledgor. The Pledgee shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Pledgee as Pledged Collateral and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or disability at any time thereafter applied (after payment of Xxxxx X.any amounts payable to the Pledgee pursuant to Section 10) in whole or in part by the Pledgee against, all or any part of the Obligations in accordance with the terms of the Credit Agreement. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment and performance in full of the Obligations shall be paid over to the Borrower or its order.
Appears in 1 contract
Events of Default and Remedies. 9.1 The 20.1. Each of the following events occurrences shall constitute an "“Event of Default" ” by Lessee under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsFacilities Lease:
(a) Failure The failure of Lessee to pay Rent or rental as and when due hereunder and the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that continuance of such default has not been cured prior to the expiration failure for a period of ten sixty (1060) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.thereafter;
(b) Failure The failure of Lessee to observeprocure and maintain the insurance required by Section 11 of this Facilities Lease, perform or to provide evidence of such insurance as required herein, and comply the continuance of either such failure for a period of three (3) business days after written request therefor by Lessor; furthermore, in such event, Lessor shall be authorized (but not required) to procure such insurance coverage(s) in the amount(s) required by this Facilities Lease with any of the obligations evidenced or secured all costs thereof to be reimbursed to Lessor by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of Lessee within thirty (30) days following after written demand by Lessor with interest thereon at the rate set forth in Section 28 hereof from the date upon which incurred by Lessor to the Lender gives the Borrower written Notice of Default.date reimbursed and paid by Lessee;
(c) Failure The failure of Lessee to duly perform, comply with or observe any other agreement, obligation, covenant, condition, or undertaking of Lessee, or any other term, condition or provision, in each case under this Facilities Lease in any material respect, and punctually paythe continuance of such failure for a period of one-hundred and twenty (120) days after written notice from Lessor to Lessee specifying the failure; or if such default is of a nature that it cannot with reasonable effort be completely remedied within said period of 120 days, observe then such additional time as is reasonably necessary to complete such cure provided that Lessee has commenced such cure within the initial one-hundred and discharge all Indebtedness twenty (120) day period and other obligations of the Borrower diligent continues to any third party, unless pursue the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.completion;
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower Lessee (i) in any bankruptcy or other insolvency proceeding, (ii) seeking any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Code of the United States or any similar law debtor relief law, or regulation(iii) for the appointment of a liquidator or receiver for all or substantially all of Lessee’s property or for Lessee’s interest in this Facilities Lease and as to any such matter commenced against Lessee by an unrelated third party that remains undismissed, whether federalundischarged, state unstayed or localunbonded for a period of ninety (90) days;
(e) If the interest of Lessee under this Facilities Lease shall, not dismissed within 30 days.by operation of law, be transferred or passed to or devolve upon any other person, firm or corporation in violation of the terms of this Facilities Lease without Lessor’s written consent in cases in which such written consent is required hereunder;
(f) If Lessee shall voluntarily abandon, desert, or vacate the Bond Financed Property, or voluntarily discontinue its operation thereon for a period of more than two (2) consecutive months and such periods as may be extended by Force Majeure;
(g) The commencement admission by Lessee in writing that it cannot meet its obligations generally as they become due or the making by Lessee of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of its creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.; and
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default Default, as therein defined, occurs and continues beyond any cure under the Ground Lease or (C) upon the death or disability of Xxxxx X.Indenture.
Appears in 1 contract
Samples: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute an "Event of Default" Default under this Pledge Security Agreement:
1. An event occurs which constitutes an Event of Default under the Loan Agreement;
2. The perfection of the security interest granted Lender in the Collateral is impaired or is about to become impaired; or
3. Pledgor fails to perform any term, condition or covenant of this Agreement, the occurrence of which shall entitle the Lender to pursue or any and all rights and remedies, legal and equitable, available to it under any Loan Document representation or otherwise. The Occurrence of an Event Default under warranty made by Pledgor in this Agreement shall constitute a default under each and every other or by Borrower in the Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently Agreement or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure therewith is determined to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerfalse.
(b) Failure to observe, perform and comply with any Upon the occurrence of one or more of the obligations evidenced foregoing Events of Default, Lender may liquidate so much of the Collateral as is required to pay the Debt and the costs, expenses and fees described in 2(a) hereof. Upon the occurrence of an Event of Default, without limiting any other right or secured by a Loan Documentremedy of Lender which may be available at law or in equity, Lender, without demand of performance or other than demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase, contract to sell or otherwise dispose of and deliver said Collateral, or any part thereof, at public or private sale or sales, at any exchange, brokers' board or elsewhere upon such terms and conditions as provided Lender may deem advisable. Lender or its agent shall pay over the net proceeds of any such collection, receipt, appropriation, realization or sale, after deduction of all reasonable costs and expenses of every kind incurred therein or in Sections 9.1(a) above; provided that such default has not been cured prior any way relating to the expiration rights of thirty (30) days following Lender hereunder, including reasonable attorneys' fees and legal expenses, to Lender for application by Lender to the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually paypayment, observe and discharge all Indebtedness and other obligations in whole or in part, of the Borrower to Debt, Pledgor remaining liable for any third partydeficiency remaining unpaid after such application, unless and only after so paying over such net proceeds and after the same is being contested in good faith payment by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in other amount required by any statementprovision of law need Lender account for the surplus, assuranceif any, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Pledgor. Pledgor agrees that Lender need not give more than ten days' notice of the Borrower pursuant to this Agreement, time and place of any public sale or of the time after which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute private sale or other law providing for an assignment for the benefit intended disposition is to take place and that such notice is reasonable notification of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation such matters. No notification need be given to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute Pledgor if it has signed after an Event of Default a statement renouncing or (C) upon modifying any right to notification of sale or other intended disposition. In addition to the death or disability rights and remedies granted to Lender in this Agreement, Lender shall have all the rights and remedies of Xxxxx X.a secured party under the Uniform Commercial Code of the State of New York.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) In the event of the happening of any one of following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsevents:
(ai) Failure the Tenant shall have failed to pay the principal an installment of Basic Rent or interest on the Borrower's present of Additional Rent or future indebtedness to the Lenderany other amount payable hereunder when due, whether or not arising pursuant to this Agreement, when and as the same such failure shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days after receipt of written notice from the Landlord that such installment or amount was due;
(ii) there shall be a default of or with any condition, covenant, agreement or other obligation on the part of the Tenant to be kept, observed or performed hereunder (other than a condition, covenant, agreement or other obligation to pay Basic Rent, Additional Rent or any other amount of money) and such default shall be continuing for a period of more than fifteen (15) days after written notice by the Landlord to the Tenant specifying the default and requiring that it discontinue;
(iii) if any policy of insurance upon the Property or any part thereof from time to time effected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant after receipt of notice in writing from the Landlord shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(iv) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(v) the Leased Premises shall be vacated or abandoned, or remain unoccupied without the prior written consent of the Landlord, such consent not to be unreasonably withheld or delayed, for fifteen (15) consecutive days or more while capable of being occupied;
(vi) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(vii) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; The Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by statute or otherwise:
(A) to remedy or attempt to remedy any default of the Tenant, and in so doing to make any payments due or alleged to be due by the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such default shall be payable by the Tenant to the Landlord on demand;
(B) with respect to unpaid overdue Rent, to the payment by the Tenant of the Rent and of interest (which said interest shall be deemed included herein in the term "Rent") thereon at a rate equal to the lesser of two percent (2%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice maximum amount allowed under the laws of Default. In the jurisdiction in which the Building is located;
(C) to terminate this Section 9Lease forthwith by delivering to the Tenant at the address prescribed in paragraph 18 dealing with notices, Notice notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of Default shall be deemed the whole and the same to have been given again, re-possess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and,
(iD) on to enter the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Leased Premises as agent of the Borrower acknowledges receipt Tenant and as such agent to re-let them and to receive the rent therefore and as the agent of such written notice, the Tenant to take possession of any furniture or other property thereon and upon giving ten (iii10) on the day after sending such days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Lease Agreement (Landstar Inc)
Events of Default and Remedies. 9.1 The 8.01 EVENTS OF DEFAULT AND ACCELERATION ---------------------------------- If any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur and be continuing then, in addition to its rights as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail4.01, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives may, at its option, declare all amounts of principal and interest on the Borrower written Notice of Default.
(c) Failure to duly Loan and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition amounts payable by the Borrower provided for herein to be then immediately due and payable:
A. if the Borrower shall fail to pay when due any amount of principal, interest or fees owing to the Lender under this Agreement;
B. if any representation or warranty made by the Borrower hereunder or in any certificate or other document delivered to the Lender pursuant hereto or thereto shall have been false or incorrect in any material respect as of the date when such representation or warranty was made;
C. if the Borrower shall fail to perform or observe or be in compliance in any material respect with any other provision, term, condition or covenant contained or provided for in this Agreement or in any other document delivered or to be delivered by or on behalf of the Borrower executed pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in on its part to be performed or observed and such failure shall not have been remedied within 15 days of written notice thereof by the Lender to the Borrower's Due Diligence Documents attributable , unless the Lender shall have agreed to a longer period and, in such event, within the fault period agreed to by the Lender;
D. if the Borrower becomes insolvent, makes any assignment in bankruptcy or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in makes any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or makes any other similar proposal under any bankruptcy law or regulation, whether federalis adjudged bankrupt, state or localfiles a petition or proposal to take advantage or any act of insolvency;
E. if a writ of execution, not dismissed within 30 days.
(g) The garnishment, attachment, levy distress or other attachment or similar action taken process is issued or levied against all or a substantial portion of the assets of the Borrower in connection with any default by or on behalf him in the payment of any creditor amount and such writ of execution,distress, attachment or similar process is not released, bonded, satisfied, discharged, vacated or stayed within 45 days after its issue or levy; and
F. if this Agreement or any other document executed pursuant to this Agreement shall, for any reason, cease to be in full force and effect or is declared to be null and void by the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Loan Agreement (Atlas Corp)
Events of Default and Remedies. 9.1 The following events (a) If any of Lessor's warranties and representations in Sections 3 and 4 hereof shall constitute be untrue, or it Lessor shall breach any covenant in Section 5 hereof and if such breach shall continue for a period of fifteen (15) days after written notice thereof from AFI or if any guarantor of Lessors' obligations hereunder shall be in default under any guaranty hereof, then Lessor shall, upon demand by AFI, purchase the Lease(s) to which such misrepresentation or breach pertains from AFI for cash in an "Event amount equal to any due but unpaid rentals or other amounts under the lease, plus the net present value of Default" the then unpaid balance of the rentals due under this Agreementthe Lease) for the remainder of their original terms and AFI's booked residual value of the Equipment, both discounted at the occurrence rate of which 6% per annum or such other rate as the parties hereto shall entitle agree upon in writing from time to time with respect to such Lease(s) and Equipment at the Lender to pursue time of original assignment and, in addition, any and all rights commission or other compensation paid or payable to or for the benefit of Lessor with respect to such Leases(s) shall be forfeited and remedieswaived, legal and equitable, available AFI shall recover from Lessor any such commission or other compensation previously paid to it under any Loan Document or otherwisefor the benefit of Lessor by or on behalf of AFI. The Occurrence Any Lease reacquired by Lessor in accordance with the provisions of an Event Default under this Agreement shall constitute a default under each be reassigned by AFI to Lessor without recourse and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently without warranty or successively from time to time. Any action by the Lender against representation of any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerkind whatsoever.
(b) Failure to observe, perform and comply with Upon the occurrence of any of the obligations evidenced material misrepresentation or secured by a Loan Document, other than breach as provided in Sections 9.1(asubparagraph (a) above; provided that such default has not , AFI may elect to rescind any pending approvals (whether given to Lessor orally or in writing) with respect to other Leases which have been cured prior presented by Lessor to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultAFI for assignment or direct lease by AFI pursuant to this Agreement.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and In the event a Lessee defaults in the payment of rentals or other obligations sums under the Lease or in the performance of the Borrower to any third partyLessee's other covenants under the Lease, unless then AFI may exercise all rights and remedies under the same is being contested in good faith by appropriate proceedings Lease and all rights and remedies of a secured party under the Borrower has set aside on its books adequate reserves Uniform Commercial Code with respect to such Indebtedness or other obligationsthe Lease and the Equipment.
(d) The discovery by the Lender of any material inaccuracy in any statementabove remedies are cumulative and not alternative, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement and AFI shall also have available all remedies at law or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderequity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Events of Default and Remedies. 9.1 (A) The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuation of an Event of Default under this Agreement the Indenture shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder.
(B) If any Event of Default has occurred and is continuing, the Mortgagee shall be entitled to:
(i) demand payment by written notice to the Owner of the Notes Obligations, whereupon such payment by the Owner to the Mortgagee shall be immediately due and payable, anything contained in the Indenture, the Notes, this Mortgage or any of the other Note Documents to the contrary notwithstanding and without prejudice to any other rights and remedies of the Mortgagee or the other Secured Parties under the Indenture, the Notes, this Mortgage or any of the other Note Documents;
(Cii) at any time and as often as may be necessary, take any such action as the Mortgagee may in its discretion deem necessary or advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees and expenses 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, and shall constitute Secured Obligations hereunder. 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 reasonable 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) exercise all the rights and remedies in foreclosure and otherwise given to the Mortgagee by any applicable law, including, without limitation, those under the provisions of Chapter 3 of Title 21 of the Liberian Code of Laws of 1956, as amended;
(iv) 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 death Mortgagee to surrender to the Mortgagee possession thereof as demanded by the Mortgagee;
(v) require that all policies, contracts, certificates of entry and other records relating to the Insurances (including details of and correspondence concerning outstanding claims) be forthwith delivered to such adjusters, brokers and/or other insurers as the Mortgagee may nominate;
(vi) collect, recover, compromise and give a good discharge for all claims then outstanding or disability thereafter arising under the Insurances or any of Xxxxx X.them or in respect of the Vessel, the Earnings or Requisition Compensation or any part thereof, 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 necessary or advisable, and, in the case of the Insurances, to permit any brokers through whom collection or recovery is effected to charge the usual brokerage therefor;
(vii) discharge, compound, release or compromise claims against the Owner in respect of the Vessel, the Earnings or Requisition Compensation or any part thereof which have given or may give rise to any charge or Lien or other claim on the Vessel, the Earnings or Requisition Compensation or any part thereof or which are or may be enforceable by proceedings against the Vessel;
(viii) 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 by the Owner under the Indenture, the Notes or this Mortgage and collect the same out of any property of the Owner;
(ix) as permitted by the laws of Liberia and other applicable laws, sell the Vessel (having first given ten days written notice to the Owner), free from any claim by the Owner (whether in admiralty, in equity, at law or by statute) by public auction or private contract at such place and upon such terms as the Mortgagee in its absolute discretion may determine with power to postpone any such sale and without being answerable for any loss occasioned by such sale or resulting from postponement thereof and with the power, where the Mortgagee purchases the Vessel, to make payment of the sale price by making an equivalent reduction in the amount of the Secured Obligations;
(x) pending sale of the Vessel (either directly or indirectly) as permitted by the laws of Liberia and other applicable laws, manage, charter, lease, insure, maintain and repair the Vessel and to employ, sail or lay up the Vessel upon such terms, in such manner and for such period as the Mortgagee may reasonably deem expedient, and for any and/or all of the purposes 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, its 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 incurred thereby;
(xi) 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; and
(xii) recover from the Owner on demand all expenses, payments and disbursements (including fees and expenses of counsel) incurred by the Mortgagee in or about or incidental to the exercise by it of any or all of the powers vested in it hereunder; PROVIDED, ALWAYS, that any sale of the Vessel by the Mortgagee pursuant to Section 7(b)(ix) above shall operate to divest all right, title and interest of the Owner, its successors and assigns, in or to the Vessel so sold and to bar any such interest of the Owner and all persons claiming through or under the Owner 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 by the Mortgagee of the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of the sale or be in any way answerable therefor. In case the Mortgagee shall have proceeded to enforce any right, power or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason (including as a consequence of a rescission of acceleration by the Holders pursuant to Section 6.02 of the Indenture) 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.
Appears in 1 contract
Samples: Indenture (Pacific Drilling S.A.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. ' 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal If any one or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice more Event of Default shall be deemed to have been given (i) on occur or shall exist, the date of personal delivery of such written notice to a GuarantorSecured Party may then, or (ii) on at any time thereafter, so long as such default shall continue, foreclose its lien or security interest in the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeCollateral in any way permitted by law, or upon fifteen (iii15) on the day after sending such days prior written notice to the Borrower by a commonly recognized overnight courier serviceDebtor, sell any 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 cash or on credit, as Federal Expressthe Secured Party, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Secured Party, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Secured Party may bid for and become the purchaser of any or by depositing all such collateral. Pending any such action, the same in Secured Party may liquidate the United States mail, postage prepaid, for delivery to the Borrower.Collateral,
(b) Failure If any one or more Event of Default shall occur or shall exist, the Secured Party 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 observeCollateral or any securities, perform and comply with any guarantees or Insurance applying thereon, without notice to or the consent of the obligations evidenced or secured by a Loan DocumentDebtor, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to without affecting the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultDebtor's liability under this Security Agreement.
(c) Failure to duly If any one or more Event of Default shall occur or shall exist and punctually paybe continuing, observe then in any such event, the Secured Party shall have such additional rights and discharge all Indebtedness and other obligations remedies In respect of the Borrower Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity, including without limitation the right to enter any third partypremises where Collateral is located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, unless which the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.Debtor expressly waives,
(d) The discovery Secured Party shall apply the Proceeds of any sale or liquidation of the Collateral, and, any Proceeds received by the Lender Secured Party from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Secured Party in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys' fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Debt, whether on account of principal or interest or otherwise as the Secured Party in its sole discretion may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Debtor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Debtor shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement Event of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsDefault, the appointment of Debtor shall promptly upon demand by the Secured Party assemble the Collateral and make it available to the Secured Party at a receiver, place or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) places to be designated by the Secured Party. The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor right of the Borrower, any Affiliate, or any of their respective properties which could Secured Party under this paragraph to have a Material Adverse Effect.
(h) Any change in control the Collateral assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Security Agreement and the Secured Party may, at its optionelection, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth enforce such right by an action in subsections 9.1
(a) through 9.1(h) above; equity for Injunctive relief or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.specific performance.
Appears in 1 contract
Samples: Equipment Purchase and Service Agreement (Foster L B Co)
Events of Default and Remedies. 9.1 The If any of the following events shall constitute an ("Event Events of Default" under this Agreement, the occurrence of which ") shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure to pay 9.1. Borrowers shall default in the payment of any installment of the principal of the Notes or interest on the Borrower's present MPW Reimbursement Obligations or future the MPW Mortgage Guaranty or any indebtedness to the Lender, whether or not arising pursuant to this Agreement, described in Section 8.2(8) when and as the same shall be become due and payable, whether at the due date thereof or at a date fixed for prepayment or by acceleration or otherwise; , provided that such default has not been cured prior to the expiration shall continue for a period of ten (10) days following calendar days;
9.2. Borrowers shall default in the date upon which the Lender gives the Borrower written Notice payment of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) interest on the Notes or the MPW Reimbursement Obligations or the MPW Mortgage Guaranty or any indebtedness described in Section 8.2(8) when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or by acceleration or otherwise, provided such default shall continue for a period of personal delivery ten (10) calendar days;
9.3. Borrowers shall default with regard to: (1) any payment of principal or interest beyond any applicable grace period if such written notice to default causes the acceleration of the indebtedness, provided such default shall continue for a Guarantorperiod of ten (10) calendar days, or (ii2) on the date on which a duly authorized representative performance or observance of any covenant, condition or agreement of any other material instrument of indebtedness executed by any of the Borrower acknowledges receipt Borrowers beyond any applicable grace period if such default causes the acceleration of the indebtedness;
9.4. Any representation or warranty made by Borrowers in this Agreement or in connection with the loan(s) hereunder, or in any security agreement, mortgage, report, certificate, financial statement or other agreement, document or instrument furnished in connection with this Agreement or the loan(s) hereunder shall prove to be false or misleading in any material respect at the time made;
9.5. Borrowers shall fail to observe or perform any covenant, condition or agreement in Section 8 of the Agreement; provided such failure shall continue unremedied for a period of twenty (20) days;
9.6. Borrowers shall fail to observe or perform any covenant, condition or agreement to be observed or performed pursuant to the terms of this Agreement (excluding Section 8), provided such default shall continue unremedied for twenty (20) days after written notice, or (iii) on which notice shall include a description of the day after sending such written notice Event of Default thereof to the Borrowers by Bank One;
9.7. Final judgment for the payment of money in excess of One Hundred Thousand Dollars ($100,000) shall be rendered against any Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing and the same in the United States mail, postage prepaid, shall remain undischarged for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) consecutive days following the date upon during which the Lender gives execution shall not be effectively stayed; or the collateral is threatened with or subject to levy, attachment, condemnation or forfeiture proceedings;
9.8. Any Borrower written Notice of Default.
shall (ci) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness apply for or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable consent to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing appointment of a petition by receiver, trustee or against the Borrower liquidator for it or for any Affiliate seeking relief under the Federal Bankruptcy Codeof its property, 11 U.S.C. ss. 101(ii) admit in writing its inability to pay its debts as they mature, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(fiii) The commencement of make a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the appointment material allegations of a petition filed against it in any proceeding under any such law or if corporate action shall be taken by any Borrower for the purpose of effecting any of the foregoing;
9.9. An order, judgment or decree shall be entered without the application, approval or consent of any Borrower by any court of competent jurisdiction, approving a petition seeking reorganization of any Borrower or appointing a receiver, trustee or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf liquidator of any creditor Borrower or of all or a substantial part of the Borrowerassets thereof, and such order, judgment or decree shall continue unstayed and in effect for any Affiliate, or any period of their respective properties which could have a Material Adverse Effect.
sixty (h60) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) days; then upon the occurrence and continuance of any such Event of Default set forth in subsections 9.1
(aDefault, Bank One shall have the option to cease disbursements under the Revolving Credit Note and/or to terminate its commitment to lend and/or to terminate its commitment to issue/renew Letter(s) through 9.1(h) above; of Credit and to declare all amounts due under the Revolving Credit Note to be immediately due and payable both as to principal and interest. The Notes shall then become immediately due and payable without presentment, demand, protest, or (b) upon the occurrence and continuance notice of any event whichkind, with all of which are hereby expressly waived, anything contained herein or in the giving Notes to the contrary notwithstanding. It is understood that the remedies of notice or Bank One hereunder shall be cumulative in nature rather than exclusive and that the lapse failure of time, or both, would constitute an Bank One to exercise its rights upon a Default by Borrowers hereunder shall not be deemed to be a waiver by Bank One of that Event of Default or (C) upon the death or disability any of Xxxxx X.its rights hereunder.
Appears in 1 contract
Events of Default and Remedies. 9.1 The If any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure The Borrowers shall fail to pay the any principal of or interest on the Borrower's present Note when due in accordance with the terms hereof; or future indebtedness the Borrowers shall fail to pay any other amount payable hereunder or under the LenderStock Pledge Agreement within three Business Days after any such other amount becomes due in accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Borrower in the Stock Pledge Agreement or which is contained in any certificate, whether document or not arising pursuant statement furnished by any Borrower under or in connection with this Note or the Stock Pledge Agreement shall prove, either individually or in the aggregate, to have been incorrect or misleading in any material respect on or as of the date made or deemed made; or
(c) Any Borrower shall default in the observance or performance of any covenant or other agreement contained in this Note or in the Stock Pledge Agreement (including, without limitation, the satisfaction of any post-closing condition set forth in Section 5 of this Note); or
(d) Any Borrower shall fail to pay any of the Secured Obligations (as defined in and set forth in the Stock Pledge Agreement, ) when and as the same shall be become due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten or
(10e) days following the date upon which the Lender gives the Any Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) default in any payment of principal of or interest on any indebtedness (other than the date loan that is the subject of personal delivery this Note) or in the payment of any guarantee obligation, aggregating $250,000 or more, beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which such written notice to a Guarantor, indebtedness or guarantee obligation was created; or (ii) default in the observance or performance of any other agreement or condition following any applicable grace periods relating to any indebtedness or guarantee obligation referred to in clause (i) immediately 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 to permit the holder or holders of any indebtedness referred to in clause (i) immediately above or beneficiary or beneficiaries of such guarantee obligation referred to in clause (i) immediately above (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the date giving of notice, lapse of time or both, if required, such indebtedness to become due prior to its stated maturity or such guarantee obligation to become payable, provided, however, that if the default described in this clause (e) is cured, the Event of Default under this clause (e) shall simultaneously be cured; or
(f) One or more judgments or decrees shall be entered against any Borrower involving in the aggregate (for such Borrower or for all Borrowers combined) a liability (to the extent not paid or covered by insurance less any applicable and customary retention or deductible) of $250,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) The Stock Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms hereof or thereof), or any Borrower shall so assert in writing or (ii) the Lien created by the Stock Pledge Agreement on which a duly authorized representative any material portion of the Collateral shall cease to be enforceable and of the same effect and priority purported to be created thereby and, if such condition is correctable, such condition is not corrected within 30 days;
(i) Any Borrower acknowledges receipt shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with 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 any Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Borrower 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 any such written noticeadjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) any Borrower shall take 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) on above; or
(v) any Borrower shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; then, and in any such event the day after sending such written notice to the Borrower by a commonly recognized overnight courier serviceprincipal of, such as Federal Expressand all accrued interest on, Purolatorthis Note, UPS and all other amounts owing under this Note or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Stock Pledge Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect shall immediately become due and payable upon written demand of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Events of Default and Remedies. 9.1 14.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement following shall constitute a breach and an event of default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsTenant:
(a) Failure The Rent payable under this Lease Agreement is not paid within 10 business days after the date on which Tenant receives written notice that it is past due;
(b) Tenant breaches or fails to comply substantially with any material term, provision, condition, or covenant of this Lease Agreement, other than the payment of Rent hereunder.
14.2 Upon the occurrence of an event of default, in the case of an event of default under subsection 14.1(a) above, and, in the case of an event of default under subsection 14.1(b) above if such event of default is not cured within thirty (30) days after written notice of such event of default is given by Landlord to Tenant, or such longer period of time as is reasonably necessary under the circumstances, Landlord shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease Agreement:
(a) Landlord, with or without terminating this Lease Agreement, may re-enter the Property without any breach of the peace or damage to Tenant's property and perform, correct or repair any condition which shall constitute a failure on Tenant's part to keep, observe, perform, satisfy, or abide by any material term, condition, covenant, agreement, or obligation of this Lease Agreement, and Tenant shall fully reimburse Landlord on demand for all costs and expenses reasonably incurred by Landlord in such performance, correction or repairing.
(b) Landlord, with or without terminating this Lease Agreement, may immediately, or at any time thereafter, demand in writing that Tenant vacate the Property and thereupon Tenant 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 Landlord within thirty (30) days after receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Property.
(c) Landlord, with or without terminating this Lease Agreement, may immediately or at any time thereafter, re-let the Property or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its commercially reasonable discretion may deem advisable, and Landlord may make any alterations or repairs to the Property which it may deem necessary or proper to facilitate such re-letting; and if this Lease Agreement shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this Lease Agreement up to and including the principal date of beginning of payment of rent by any subsequent tenant of part or interest on all of the Borrower's present Property, and thereafter Tenant shall pay monthly during the remainder of the Lease Term the difference, if any, between the rent and other charges collected from any such subsequent tenant or future indebtedness to tenants and the Lender, whether or not arising pursuant to rent and other charges reserved in this Lease Agreement, when but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(d) Landlord may immediately or at any time thereafter terminate this Lease Agreement, and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default Lease Agreement shall be deemed to have been given (i) on the date terminated upon receipt by Tenant of personal delivery written notice of such written notice to a Guarantortermination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination, or including, without limitation, all arrearages in rentals, costs, charges, reimbursements, the cost (iiincluding court costs and reasonable attorneys' fees) on the date on which a duly authorized representative of recovering possession of the Borrower acknowledges receipt Property.
14.3 The occurrence of such written noticethe following shall constitute a breach and an event of default by the Landlord:
(a) Any representation or warranty of Landlord herein contained shall be determined to be incorrect, false or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowermisleading when made.
(b) Failure Landlord breaches or fails to observe, perform and comply substantially with any material term, provision, condition or covenant of this Lease Agreement.
14.4 If an event of default should occur on the obligations evidenced or secured by a Loan Documentpart of Landlord, other than as provided in Sections 9.1(a) above; provided that at any time after its occurrence, upon written notice to Landlord and Landlord's failure to cure such event of default has not been cured prior to the expiration of within thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to after such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.notice, and without limiting Tenant's other rights or remedies, Tenant may cure such default and deduct or offset any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate such amounts from sums due to Landlord under any statute or other law providing for an assignment this Lease Agreement until Tenant is fully compensated for the benefit expenses it may incur and losses it may sustain as a result of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 dayssuch breach.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Lease Agreement (Syndicated Food Service International Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, SPCA, as follows:
(a) Failure to pay agent for the principal Purchasers, may then or interest on the Borrower's present or future indebtedness to the Lenderat any time thereafter, whether or not arising pursuant to this Agreement, when and so long as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any 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 cash or on credit, as Federal ExpressSPCA, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Purchasers, in its sole discretion, may elect, and at any such written notice to sale, SPCA, as agent for the Borrower by facsimile (to both numbers set forth in Section 16.7) Purchasers, may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Purchasers may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure if any one or more of the Events of Default shall occur or shall exist, SPCA, as agent for the Purchasers, 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower's liability under this Agreement or the Notes. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper or any of the obligations evidenced or secured by a Loan Document, its contract rights and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, SPCA, as agent for the Purchasers, shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings 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 Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery by SPCA, as agent for the Lender Purchasers, shall apply the Proceeds of any material inaccuracy sale or liquidation of the Collateral, and, subject to Section 6, any Proceeds received by SPCA, as agent for the Purchasers, from insurance, first to the payment of the reasonable costs and expenses incurred by SPCA, as agent for the Purchasers, in any statementconnection with such sale or collection, assuranceincluding without limitation reasonable attorneys' fees and legal expenses, representationsecond to the payment of the Debt, covenantwhether on account of principal or interest or otherwise as SPCA, warrantyas agent for the Purchasers, term or condition by in its sole discretion, may elect, and then to pay the balance, if any, to the Borrower contained in this Agreement or in any document delivered or as otherwise required by law. If such Proceeds are insufficient to be delivered pay the amounts required by or on behalf of law, the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Codeshall promptly upon written demand by SPCA, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment as agent for the benefit Purchasers, assemble the Equipment, Inventory and Fixtures and make them available to the Purchasers at a place or places to be designated by the Purchasers. The rights of creditorsSPCA, as agent for the appointment of a receiverPurchasers, or any other similar law or regulationunder this paragraph to have the Equipment, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor Inventory and Fixtures assembled and made available to it is of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and SPCA, as agent for the Purchasers, may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (A) Events of Default. Each of the following events shall constitute an "Event event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsdefault:
(ai) Failure to perform and comply with the provisions and conditions of Section B hereof; or
(ii) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date when due, any sum, including installments of personal delivery rental, owed by Lessee or any affiliate of such written notice Lessee at anytime to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or Lessor; or
(iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any other provision or condition of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of Lease within thirty (30) days following the date upon which the Lender gives the Borrower after Lessor shall have given Lessee written Notice notice of Default.default with respect thereto; or
(civ) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations Any event of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves default occurs with respect to such Indebtedness any obligations of Lessee to lessor on or with respect to any transactions, debts, undertakings or agreements other obligations.than the lease; or
(dv) The discovery If any representation or warranty made by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement Lessee herein or in any document delivered statement or to be delivered certificate furnished by or on behalf Lessee in connection with this Agreement proves untrue in any material respect as of the Borrower pursuant to this Agreementdate of making thereof, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties and shall not constitute a breach of this Section 9.1(d))be made good within thirty (30) days after written notice thereof to Lessee, or in any other Loan Document, Lessee becomes insolvent or in any other agreement between the Borrower and the Lender.is generally not paying its debts as they become due or makes an assignment for benefit of creditors; or
(evi) The filing of a petition Proceedings are commenced by or against the Borrower or any Affiliate seeking relief Lessee under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Code or any similar law Federal or regulation, whether federal, state or local, State laws for the relief of debtors are commenced against Lessee and are not dismissed within 30 days.sixty (60) days after such commencement, or a trustee or receiver is appointed for Lessee or a major part of its property and is not discharged within thirty (30) days after such appointment; or
(fvii) Any item of Equipment is seized or levied on under legal or governmental process against Lessee or against such item of Equipment or for any reason Lessor deems itself insecure; or
(viii) The commencement merger, consolidation, reorganization, conversion to a Subchapter "S" status or dissolution of a proceeding by corporate or against partnership Lessee which has a materially adverse effect upon Lessor's position under the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysLease.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Master Lease Purchase Agreement (Pharmchem Laboratories Inc)
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one an "“Event of Default" under ”), Landlord shall have the right to exercise any rights or remedies available in this AgreementLease, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document at law or otherwisein equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall be:
(ai) Failure Tenant’s failure to pay the principal any rental or interest on the Borrower's present or future indebtedness to the Lenderother sum of money payable hereunder within five (5) days after same becomes due; provided, whether or not arising pursuant to this Agreementhowever, when and as the same Tenant shall be due and payable, whether by acceleration or otherwise; provided entitled to written notice from Landlord that such default has amounts are past due no more than twice in any Lease Year and it shall not been cured prior be deemed an Event of Default hereunder so long as Tenant makes any such payments to the expiration of ten Landlord within five (105) days following the date upon which the Lender gives the Borrower written Notice after receipt of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such said written notice to a Guarantor, or from Landlord;
(ii) on the date on which a duly authorized representative Tenant’s failure to perform any other of the Borrower acknowledges receipt of such written noticeterms, covenants or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth conditions contained in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has this Lease if not been cured prior to the expiration of remedied within thirty (30) days following after receipt of written notice thereof, or if such default cannot be remedied within such period, Tenant does not within thirty (30) days after written notice thereof commence such act or acts as shall be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or acts within ninety (90) days after written notice thereof:
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or 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 date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness petition or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))appointment, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, the appointment of a receiver, or petitions for or enters into an arrangement; or
(iv) A default by Tenant under any other similar law lease heretofore or regulation, whether federal, state or local, not dismissed within 30 dayshereafter made by Tenant for any other space in the Project.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) In addition to its other remedies, Landlord, upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default by Tenant, shall have the immediate 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 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 Tenant at the time of 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 Tenant shall remain liable to Landlord for the total Annual Rental (Cwhich may at Landlord’s election be accelerated to be 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 Tenant hereunder for the remainder of the term less the rentals actually received from any reletting or, at Landlord’s election, less the reasonable rental value of the Premises for the remainder of the term. In determining the Annual Rental which would be payable by Tenant subsequent to default, except with respect to Minimum Rental (which shall be calculated in accordance with Section l(g) hereof), the Annual Rental for each Lease Year of the unexpired term shall be equal to the Annual Rental payable by Tenant for the last Lease Year prior to the default. If any rent owing under this Lease is collected by or through an attorney, Tenant agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by applicable law. Notwithstanding anything contained herein to the contrary, upon the death or disability an Event of Xxxxx X.Default by Tenant, Landlord agrees to use reasonable efforts to mitigate its damages.
Appears in 1 contract
Events of Default and Remedies. 9.1 The 20.1. In the event of the happening of any one of the following events events:
20.1.1. the Tenant shall constitute have failed to pay an "Event installment of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document Rent or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other securityamount payable hereunder when due, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same such failure shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days following after the date upon which following notice that such installment or amount was overdue; [ * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
20.1.2. there shall be a Default of or with any condition, covenant, agreement or other obligation on the Lender gives part of the Borrower written Notice Tenant to be kept, observed or performed hereunder (other than a condition, covenant, agreement or other obligation pay Rent, or any other amount of Default. In this Section 9, Notice of money) and such Default shall be deemed to have been given (i) on the date continuing for a period of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other more than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following after written notice by the date upon which City to the Lender gives Tenant specifying the Borrower written Notice Default and requiring that it be cured, provided that if the Default is such that it cannot reasonably be cured within thirty (30) days, the Tenant is proceeding expeditiously to cure the Default;
20.1.3. if any policy of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves insurance with respect to such Indebtedness the Site or other obligations.
(d) The discovery any part thereof from time to time effected by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term City shall be cancelled or condition is about to be cancelled by the Borrower contained in this Agreement insurer by reason of the use or in occupation of the Site by the Tenant or any document delivered or one permitted by the Tenant to be delivered by upon the Site and the Tenant after receipt of notice in writing from the City shall have failed to take such immediate steps in respect of such use or on behalf occupation as shall enable the City to reinstate or avoid cancellation or replacement (as the case may be) of such policy of insurance;
20.1.4. without the prior written consent of the Borrower pursuant to this AgreementCity, which inaccuracy would result in a Material Adverse Effect (except the Site be used by any persons other than the Tenant or its permitted assigns or tenants or for any purpose other than that inaccuracies in permitted herein;
20.1.5. the Borrower's Due Diligence Documents attributable to the fault Site shall be vacated or neglect of third-parties shall not constitute a breach of this Section 9.1(d))abandoned, or in any other Loan Document, remain unoccupied without the prior written consent of the City for fifteen (15) consecutive days or in any other agreement between more while capable of being occupied;
20.1.6. the Borrower and balance of the Lender.
(e) The filing of a petition by or against the Borrower Term or any Affiliate seeking relief under of the Federal Bankruptcy Code, 11 U.S.C. ssgoods and chattels of the Tenant located on the Site shall at any time be seized in execution or attachment and such seizure remains outstanding for a period of more that sixty (60) days; or
20.1.7. 101, et seq., and the Tenant shall make any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorscreditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant.
20.2. Upon the happening of any event described in section 20.1, the appointment City shall have the following rights and remedies all of a receiverwhich are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the City by statute or otherwise:
20.2.1. the right to remedy or attempt to remedy any Default of the Tenant, and in so doing to make all payments due or alleged to be due by the Tenant to third parties and to enter upon the Site to do any work or other things therein, and in such event all reasonable expenses of the City in remedying or attempting to remedy such Default together with interest thereon as provided herein shall be payable by the Tenant to the City on demand;
20.2.2. with respect to unpaid overdue Rent, or any other similar law amount payable hereunder including any interest (which amount and interest shall be deemed included herein in the term [ * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. “Rent”) the right to collect interest (or regulationcompound interest in the case of interest in arrears) thereon at the rate as herein specified;
20.2.3. the right to terminate this Lease forthwith by leaving upon the Site or by affixing to an entrance door to the Facility, whether federalnotice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter onto the Site or any part thereof in the name of the whole and the same to have again, state or localre-possess and enjoy as of its former estate, not dismissed within 30 days.anything in this Lease contained to the contrary notwithstanding;
(g) The garnishment20.2.4. the right to come onto the Site as agent of the Tenant and as such agent to re-let them and to receive the Rent therefor and as the agent of the Tenant to take possession of any chattels, attachment, levy fixtures or other similar action taken by or on behalf of any creditor of the Borrowerproperty thereon and, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
upon giving ten (h10) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without days’ written notice to the Borrower:Tenant, to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the same at public or private sale without further notice and to apply the proceeds thereof and any Rent derived from re-letting the Site upon account of the Rent due and to become due under this Lease and the Tenant shall be liable to the City for the deficiency if any; and
(a) 20.2.5. the right to xxx for damages for breach of this Lease which rights shall not be extinguished upon any seizure or forfeiture of the Term or any distress levied upon the occurrence goods and continuance property of any Event of Default set forth in subsections 9.1the Tenant.
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with 20.3. Upon the giving by the City of a notice in writing terminating this Lease under subsection 20.2.3 or as elsewhere provided herein, this Lease and the lapse Term shall terminate and the Rent and any other payments for which the Tenant is liable under this Lease shall be computed, apportioned and paid in full to the date of timesuch termination, or bothand there shall immediately become due and payable forthwith in one lump sum as liquidated damages and not a penalty the aggregate of the Rent for a period of two (2) years, would constitute an Event being the estimated time required for re-leasing the Site or, if less than two (2) years remains of Default or the Term, the aggregate of the Rent for the unexpired portion of the Term. Upon termination of this Lease and the Term, the Tenant shall immediately deliver up possession of the Site to the City, and the City may forthwith re-enter and take possession of them.
20.4. The Tenant shall pay to the City on demand all costs and expenses, including legal fees (Con a solicitor-and-his-own-client-basis) upon incurred by the death or disability City in enforcing any of Xxxxx X.the obligations of the Tenant under this Lease.
20.5. Termination of this Lease as outlined above shall terminate the Operating Agreement on the same date as this Lease is terminated.
Appears in 1 contract
Samples: Biofuels Facility Operating Agreement (Enerkem Inc.)
Events of Default and Remedies. 9.1 The In addition to any other remedies the holders of Preferred Stock may have, if any of the following events shall constitute occur:
(a) the Corporation shall fail to redeem any shares of Preferred Stock required to be so redeemed under Section 5(a), (b) or (c) at the applicable redemption price (whether or not there are funds legally available therefor) and on the date fixed, or by the last day of the period within which the Corporation is to required to fix a date, for redemption (a "Missed Redemption Date"); or
(b) the Corporation shall be in breach of any of the covenants set forth under Section 7(a), (b), (c) or (d) hereof and such breach shall not have been cured within thirty (30) days of the Corporation's first having actual knowledge of such breach (including by notice from a holder of Preferred Stock); or
(c) if any shares of Preferred Stock, par value $.001 per share, of NPAL ("NPAL Preferred Stock") are issued and outstanding, an Event of Default (as such term is defined in Article FOURTH of the Certificate of Incorporation of NPAL) under the terms of the NPAL Preferred Stock shall have occurred and be continuing; then, upon the occurrence of any of the events set forth in clauses (a), (b) or (c) above (each, an "Event of Default" under this Agreement") and at all times thereafter until such time as such Event of Default has been cured in full and no other Event of Default remains uncured, (i) the dividend rate applicable to the Preferred Stock shall increase to a rate per annum equal to 11.5% of the Liquidation Price (if not already at such dividend rate pursuant to Section 3 hereof) effective upon (A) the Missed Redemption Date, (B) the expiration of the 30-day period described in clause (b) above if the breached covenant(s) specified in clause (b) have not then been cured within such period or (C) the occurrence of which shall entitle an Event of Default under the Lender to pursue any and all rights and remediesterms of the NPAL Preferred Stock, legal and equitableas the case may be, available to it under any Loan Document or otherwise. The Occurrence (ii) in the case of an Event of Default referred to in clauses (b) or (c) above, each holder of Preferred Stock shall have the right, at such holder's option, to require the redemption by the Corporation, in whole or in part, of such holder's shares of Preferred Stock (in accordance with the procedures set forth in Section 5 (b) hereof), (iii) if a holder exercises its right of redemption pursuant to the immediately preceding clause (ii) or in the case of an Event of Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
clause (a) Failure above where the Corporation shall have failed to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that cure such default has not been cured prior to the expiration Event of Default within ten (10) days following after the original date fixed for redemption (or the last day, if any, of the period within which the Corporation is required to fix a date for redemption), the redemption price for the shares of Preferred Stock to be redeemed shall be (or shall be increased to) the amount determined by dividing the Liquidation Price as of the date upon which of such redemption by the Lender gives Discounted ADS Price and multiplying the Borrower written Notice resulting quotient by the Actual ADS Price and (iv) the holders of Defaulta majority of the outstanding shares of Preferred Stock shall have the right to cause the Corporation to enforce the Corporation's rights under the Funding Agreement and to direct the time, method and place of conducting any remedy available to the Corporation thereunder. In the event the Corporation breaches any of the provisions of Section 7(c) of this Certificate of Designations, or if any of the provisions of Section 97(c) of Article FOURTH of the Certificate of Incorporation of NPAL or Section 4 of the Funding Agreement shall be breached, Notice of Default such breach shall be deemed cured at such time as all accrued and unpaid dividends, if any, on the Preferred Stock that has been cumulatively added to the Liquidation Price, together with all other dividends accrued and unpaid on the Preferred Stock, shall have been given (i) on declared and paid in full to the date holders of personal delivery the Preferred Stock. For greater certainty, if a holder of such written notice Preferred Stock exercises its rights of redemption pursuant to a Guarantor, or clause (ii) on above, then the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeredemption price, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower adjusted pursuant to this AgreementSection 8, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in shall be payable by the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf Corporation irrespective of any creditor subsequent cure of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth Default(s) that resulted in subsections 9.1
such right of redemption under clause (a) through 9.1(hii) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X..
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Fox Television Stations Inc /De/)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event If Xxxxxxxx keeps and performs each of Default" under the covenants, conditions, obligations and agreements in the Second Note and this AgreementSecurity Instrument, the occurrence of which shall entitle the Lender to pursue any and all rights and remediesthen, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same trust conveyance shall be due of no further force or effect. But, if Borrower fails to keep and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the covenants, conditions, obligations evidenced or secured by a Loan Documentand agreements in the Second Note and this Security Instrument, other than as provided in Sections 9.1(a) above; provided that and such default has defaults are not been cured prior to the expiration of within thirty (30) days following from written notice to Borrower specifying such default, then, and in any of such events, this trust conveyance shall remain in full force and effect, and at the option of the Lender, all amounts advanced under the Second Note or hereunder shall become due and payable at once, without notice, and the Trustee, acting in person or through an agent or agents duly appointed by him for this purpose, is hereby authorized and empowered, upon giving twenty (20) days notice by three (3) publications in any newspaper, daily or weekly, published in the county in which the Property is located, to sell the Property at the front door of the Courthouse in said county (or at such other place at said Courthouse as is usually and customarily used for the conduct of foreclosure sales) to the highest bidder for cash, at public outcry, free from the equity of redemption, any and all statutory rights of redemption including, without limitation, those provided in T.C.A. Section 66-8-101, as amended, or as may be hereinafter enacted, homestead, dower, courtesy, any elective share, and all other exemptions or marital rights of every kind, which are hereby expressly waived; and the Trustee is authorized and empowered to execute and deliver a deed to the purchaser. The sale may be adjourned from day to day by the Trustee or his agent or successor, by announcement at the Courthouse on the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same sale is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretooriginally set, or any similar law or regulationadjournment thereof, whether federaland may be reset at a later date without any additional publication. The creditor may bid at any sale under this trust conveyance. Xxxxxxxx agrees that the Trustee may, state or localat any time after default in the payment of any part of the indebtedness, not dismissed within 30 days.
(f) The commencement enter and take possession of the Property, and shall only account for the net rents actually received by him. Xxxxxxxx further agrees that, in the event the Trustee fails, before selling the Property as herein provided, to enter and take possession thereof, the purchaser shall be entitled to immediate possession thereof upon the delivery to him by the Trustee of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment deed for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Property. Lender may, at its optionany time and from time to time, terminate its obligation without assigning cause, in Xxxxxx’s sole and absolute discretion, remove the Trustee herein named and appoint a successor to make advances execute this trust, by an instrument in writing duly executed by Xxxxxx and filed for record in the county in which the Property is located and, upon the execution and filing of such instrument, the title herein conveyed to the Trustee shall be vested in the successor so appointed. In the event of a sale of the LoanProperty under and by virtue of this trust, without notice Borrower, and all persons holding under Borrower, shall be and become the tenants at will of the purchaser from and after the execution and delivery of a deed to the Borrowerpurchaser. Upon any sale under this Security Instrument, the proceeds will be applied by the Trustee:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Subordinate Deed of Trust
Events of Default and Remedies. 9.1 2.1 The following events shall constitute an "Event of Default" under this AgreementTenant shall, without any previous demand therefore, pay to the Landlord, or its agent, the occurrence said rent at the times and in the manner above provided. In the event of which the non-payment of said rent, or any installment thereof, at the times and in the manner above provided. Such re-entry by the Landlord shall entitle not operate to release the Lender Tenant from any rent to pursue any and all rights and remediesbe paid or covenants to be performed hereunder during the full term of this Lease period. For the purpose of reletting, legal and equitable, available the Landlord shall be authorized to it under any Loan Document make such repairs to a building standard condition in or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and to the leased premises as may be exercised concurrently or successively from time necessary to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing place the same in the United States mail, postage prepaid, for delivery good order and condition. The Tenant shall be liable to the Borrower.
(b) Failure to observeLandlord for the reasonable cost of such repairs, perform and comply with any all reasonable expenses of such reletting. If the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered sum realized or to be delivered by realized from the reletting is insufficient to satisfy the monthly or on behalf of the Borrower pursuant to term rent provided in this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsLease, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayLandlord, at its option, terminate its obligation may require the Tenant to make advances pay such deficiency month by month, or may hold the Tenant liable in advance for the entire deficiency to be realized during the term of the Loanreletting. The Tenant shall not be entitled to any surplus accruing as a result of the reletting.
2.2 The Landlord is hereby granted a lien, without notice in addition to any statutory lien or right to distrain that may exist, on all personal property of the Tenant in or upon the Demised Premises, to secure payment of the rent and performance of the covenants and conditions of this Lease. The Landlord shall have the right, only after the Landlord has taken possession of the leased property pursuant to this paragraph, as agent of the Tenant, to take possession of any furniture, fixtures or other personal property of the Tenant found in or about the premises, and sell the same at public or private sale and to apply the proceeds thereof to the Borrower:
(a) upon the occurrence and continuance payment of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon moneys becoming due under this Lease, the occurrence and continuance Tenant hereby waiving the benefit of any event whichlaws exempting property from execution, with the giving of notice levy and sale on distress or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.judgment.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the likeSubsidiary, sell any 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 cash or on credit, as the Collateral Agent, in its sole discretion, may elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform guarantees or insurance applying thereon, without notice to or the consent of the Borrower or the Subsidiary, without affecting the Borrower’s or the Subsidiary’s liability under this Agreement or the Notes. Each of the Borrower and comply with the Subsidiary waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives Borrower or the Borrower written Notice of DefaultSubsidiary may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the 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 Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsSubsidiary expressly waive.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata , whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))the Subsidiary or as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeSubsidiary shall promptly upon written demand by the Collateral Agent assemble the Equipment, 11 U.S.C. ss. 101, et seq., Inventory and any amendments thereto, Fixtures and make them available to the Buyers at a place or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) places to be designated by the Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by El Paso shall constitute an "Event of Default" under this Agreement, and give rise to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to part of the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Trustee described in Section 9, Notice of Default shall be deemed to have been given 19(b):
(i) on default in the date payment of personal delivery of any amount payable by El Paso hereunder for 30 days after such written notice to a Guarantor, or payment is due; or
(ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticefailure to perform or observe any other term, covenant or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower agreement contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, Contract or in any other agreement between the Borrower El Paso and the Lender.Trustee on El Paso's part to be performed or observed, which such failure shall remain unremedied for 30 days after written notice thereof shall have been given to El Paso by the Trustee; or
(eiii) The filing of a petition any representation or warranty made by El Paso herein, in the Assignment Agreements or against in any document or certificate furnished to the Borrower Trustee or any Affiliate seeking relief under other party in connection herewith or therewith or pursuant hereto or thereto shall prove at any time to be incorrect as of the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and date made in any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.material respect; or
(fiv) The commencement the institution of a any proceeding by or against the Borrower El Paso seeking to adjudicate it a bankrupt or any Affiliate insolvent or seeking reorganization, arrangement, adjustment, liquidation or compensation of it or its debts under any statute law relating to bankruptcy, insolvency or other law providing reorganization or relief of debtors, or seeking appointment of a receiver, trustee, or similar official or for any substantial part of its property and, if instituted against El Paso, consent thereto by El Paso or failure by El Paso for 60 days to stay such proceeding, or the taking of any action by El Paso to authorize any of the actions set forth above; or
(v) the termination of existence or business failure of, or the making of an assignment for the benefit of creditors, creditors by El Paso; or
(vi) admission in writing by El Paso of its in- ability to pay its debts; or
(vii) this Contract or the appointment of a receiver, Trust Agreement shall terminate or cease to be in full force and effect for any reason (other similar law or regulation, whether federal, state or local, not dismissed within 30 daysthan pursuant to Section 17 hereof).
(gb) The garnishment, attachment, levy or other similar action taken by or on behalf Upon the occurrence and during the continuance of any creditor Event of Default, the Trustee may in its discretion do any one or more of the Borrowerfollowing:
(i) proceed by appropriate judicial proceedings, any Affiliateeither at law or in equity, to enforce performance or observance by El Paso of the applicable provisions of this Contract, or any of their respective properties which could have a Material Adverse Effect.to recover damages for the breach thereof; or
(hii) Any change in control without limiting the generality of clause (i) above, the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Trustee may, at its option, terminate in addition to all other rights and remedies provided hereunder or under applicable law, without regard to whether any· or all of such other rights and remedies have been or are to be exercised, in its obligation own name or the name of El Paso, demand, xxx upon or otherwise enforce the Assigned Agreements with full power as though the Trustee were the party named in the Assigned Agreements, and amend, revise, release or otherwise change the same as may seem proper to make advances the Trustee in its sole discretion and exercise all other rights of El Paso under the Assigned Agreements in such manner as it may determine. The exercise by the Trustee of the Loan, without notice to the Borrower:rights and remedies granted it in this clause (ii) shall not be considered a waiver of any Event of Default.
(aiii) without limiting the generality of Clauses (i) or (ii) above, upon the occurrence and during the continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or Default, El Paso agrees that the Trustee may (Cbut shall not be obliged to), at its sole election, perform for El Paso under any and all Assigned Agreements.
(iv) upon terminate this Contract.
(c) In addition to the death or disability remedies of Xxxxx X.the Trustee provided in Section 19(b) above, the Trustee shall be entitled to recover from El Paso all losses, damages and expenses sustained by the Trustee by reason of such default and to all other remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute constitutes an "“Event of Default" ” under this AgreementIndenture:
(1) default for 30 days in the payment when due of interest, including Additional Interest, if any, on the Securities (whether or not prohibited by Article 10);
(2) default in payment when due of the principal of or premium, if any, on the Securities (including upon mandatory redemption), and any failure of the Issuer to make a Change of Control Offer or Asset Sale Offer when required or to purchase Securities required to be purchased in connection therewith (whether or not prohibited by Article 10);
(3) failure by the Issuer to comply with Section 5.01 or 5.03;
(4) failure by the Issuer for 30 days after receipt of notice from the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities specifying such failure to comply with Section 4.03 or Section 4.04; provided, however, at all times while the GS Parties constitute the Required Holders, an Event of Default shall occur upon receipt of any such notice by the Issuer;
(5) failure by the Issuer for 60 days after receipt of notice given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities outstanding specifying such failure to comply with any other Sections of this Indenture or the Securities; provided, however, at all times while the GS Parties constitute the Required Holders, such 60 day period shall be reduced to 30 days for any failure to comply with Section 4.07;
(6) (A) the failure by the Issuer or any Restricted Subsidiary that is a Guarantor to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a default or (B) or a default occurs with respect to any Debt of the Issuer or any Restricted Subsidiary that is a Guarantor that ranks pari passu with the Securities or the relevant Security Guarantee or constitutes Subordinated Debt, which default permits the holder or holders thereof (or any trustee or agent on their behalf) to accelerate that Debt (giving effect to any applicable grace period), and, in the case of (A) or (B) the total amount of such Debt unpaid or accelerated or in default at the time exceeds $30.0 million;
(7) any judgment or decree for the payment of money in excess of $30.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or which are covered by insurance (unless the Issuer’s insurance carriers have denied coverage in respect thereof) in the event any appeal thereof shall be unsuccessful) is entered against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there is a period of 60 days following the entry of such judgment or decree during which such judgment or decree is not discharged, waived or the execution thereof stayed;
(8) except as permitted by this Indenture, any Security Guarantee by a Guarantor that is a Significant Subsidiary shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(9) Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) or takes any comparable action under any foreign laws relating to insolvency;
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and the order or decree relating thereto remains unstayed and in effect for 60 days; or
(11) while the GS Parties constitute the Required Holders: (A) the occurrence of (x) any material breach of the representations and warranties contained in Section 4 of the Purchase Agreement which shall entitle do not contain materiality or material adverse effect qualifiers or (y) any breach of the Lender to pursue any representations and all rights and remedies, legal and equitable, available to it under any Loan Document warranties contained in Section 4 of the Purchase Agreement which contain materiality or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently material adverse effect qualifiers or successively from time to time. Any action (B) failure by the Lender against any property or party shall not serve Issuer for 30 days after receipt of notice from the GS Parties specifying such failure to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorcomply, or (ii) on cause the date on which a duly authorized representative compliance of, with any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same covenants contained in the United States mail, postage prepaid, for delivery to the BorrowerPurchase Agreement.
(b) Failure to observe, perform and comply with The foregoing shall constitute Events of Default whatever the reason for any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effect by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.governmental body.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon five (105) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceGrantor, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Grantor, without affecting Grantor’s liability under this Agreement or the Notes. Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultGrantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness take possession and control thereof without demand or other obligationsnotice and without prior judicial hearing or legal proceedings, which Grantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantor shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing of a petition by or against Upon the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf occurrence of any creditor Event of Default, Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a place or places to be designated by the Collateral Agent The rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 1 contract
Events of Default and Remedies. 9.1 14.1. The following events shall constitute an "Event events of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with terms of this transaction. The Events of Default are as followsLease:
(a) Failure if Tenant shall neglect or fail to pay perform or observe any of the principal covenants, terms, provisions, or interest conditions contained in this Lease on the Borrower's present its part to be performed or future indebtedness observed (except for payment of Rent or any other monetary charges due hereunder) within fifteen (15) days after written notice thereof from Landlord, or such additional time as is reasonably required to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that correct any such default has not been cured prior to the expiration of ten but in no event more than an additional fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9days, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.or
(b) Failure if Tenant shall neglect or fail to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than pay Rent as provided for in Sections 9.1(a) aboveArticle III, or any other monetary obligation at any time owing from Tenant to Landlord precisely when due; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.or
(c) Failure to duly and punctually payif the leasehold estate created by this Lease shall be taken on execution or by other process of law, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.or
(d) The discovery by if Tenant abandons the Lender leased property or if Tenant fails to operate the Business and such abandonment or failure to operate continues for five (5) consecutive days (other than as a result of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term damage or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable other casualty to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(dleased property)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing if Landlord materially breaches any of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Codecovenants, 11 U.S.C. ss. 101terms, et seq., and any amendments theretoprovisions, or any similar law conditions contained in this Lease on its part to be performed or regulation, whether federal, state or local, not dismissed within 30 daysobserved.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon 14.2. Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event whichof default by Tenant, with the giving of notice or the lapse of timeLandlord may immediately, or bothat any time thereafter, would constitute an Event without further demand or notice, terminate this Lease without any further liability, hereunder, and exercise any and all other remedies available to Landlord at law or in equity under the laws of Default the State of Nevada.
14.3. Upon the occurrence of any event of default by Landlord, Tenant may immediately, or (C) upon at any time thereafter, without further demand or notice, terminate this Lease without any further liability hereunder, and exercise any and all other remedies available to Tenant at law or in equity under the death laws of the State of Nevada.
14.4. Failure on the part of Landlord or disability Tenant to complain of Xxxxx X.any action or non-action on the part of Tenant or Landlord, respectively, no matter how long the same may continue, shall not be deemed to be a waiver by Landlord or Tenant of any of either’s rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by Landlord or Tenant shall be construed as a waiver of any of the other provisions hereof and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval of Landlord or Tenant to or of any action by Tenant or Landlord requiring Landlord’s or Tenant’s consent or approval, respectively, shall not be deemed to waive or render unnecessary Landlord’s or Tenant’s consent or approval to or of any subsequent similar act by Tenant or Landlord.
Appears in 1 contract
Samples: Lease Agreement (Tropicana Las Vegas Hotel & Casino, Inc.)
Events of Default and Remedies. 9.1 The SECTION 9.1. Any one or more of the following events shall constitute an "Event of DefaultEVENT OF DEFAULT" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment of any installment of the principal of or interest on any Note or Application when due, whether at the Borrower's present stated maturity thereof or future indebtedness at any other time provided for in this Agreement and the continuance of such default for two Business Days after notice thereof to the LenderCompany from the Agent or any Bank, whether or default in the payment when due of any fee, charge or other amount payable by the Company hereunder or under any other Loan Document and the continuance of such default for five Business Days after notice thereof to the Company from the Agent or any Bank;
(b) default in the observance or performance of any covenant set forth in Sections 8.13, 8.14, 8.15 or 8.16 hereof or of any Collateral Document dealing with the use, disposition or remittance of the proceeds of Collateral or the maintenance of insurance thereon;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 30 days after written notice thereof to this Agreement, the Company by any Bank or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by any Bank or by the holder of any Note;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $2,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods;
(10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Material Subsidiary takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than Xxxxxx X. Xxxxxxxxxx and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysforegoing purposes.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of SECTION 9.2. When any Event of Default set forth described in subsections 9.1
(a) through 9.1(hto 9.1(i), both inclusive, has occurred and is continuing, the Agent may (and shall, upon request of the Required Banks), by notice to the Company, take any or all of the following actions:
(a) above; or terminate the obligation of the Banks to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) upon declare the occurrence principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges and commissions payable hereunder, shall be and become immediately due and payable without further demand, presentment, protest or notice of any event whichkind;
(c) demand that the Company immediately provide to the Agent cash collateral for the full amount of each Letter of Credit and the Company agrees to immediately provide such cash collateral and acknowledges and agrees that the Banks would not have an adequate remedy at law for failure by the Company to honor any such demand and that the Banks shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of Credit, with the giving of notice funds so paid to, if the Company so requests, be invested in short-term high-grade debt securities, acceptable and pledged to and held by the Agent in accordance with Section 4.6(d) hereof; and
(d) enforce any and all rights and remedies available under the Loan Documents or the lapse of time, or both, would constitute an applicable law.
SECTION 9.3. When any Event of Default described in subsections 9.1(j) or (Ck) upon has occurred and is continuing, then (a) the death then unpaid balance of the Notes, including both principal and interest, and all fees, charges and commissions payable hereunder or disability under the Applications, shall immediately become due and payable without presentment, demand, protest or notice of Xxxxx X.any kind, (b) the obligation of the Banks to extend further credit pursuant to any of the terms hereof shall immediately and automatically terminate, (c) the Company shall immediately provide to the Agent cash collateral for the full amount of all Letters of Credit, whether or not draws have been made thereon, the Company acknowledging that the Banks would not have an adequate remedy at law for failure by the Company to honor any such demand, and the Banks shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of Credit, and (d) the Agent may exercise all remedies available to it under the Loan Documents or applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) In the event of the happening of any one of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsevents:
(ai) Failure the Tenant shall have failed to pay the principal an installment of Tent or interest on the Borrower's present or future indebtedness to the Lenderany other amount payable hereunder when due, whether or not arising pursuant to this Agreement, when and as the same such failure shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days after the date such installment or amount was due;
(ii) there shall be a default of or with any condition, covenant, agreement or other obligation on the part of the Tenant to be kept, observed or performed hereunder (other than the obligation to pay Rent or any other amount of money) and such default shall be continuing for a period of more than fifteen (15) days after written notice by the Landlord to the Tenant specifying the default and requiring that it be cured;
(iii) if any policy of insurance upon the Property or any part thereof from time to time effected by the Landlord shall be canceled or about to be canceled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant after receipt of notice in writing from the Landlord shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(iv) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or a permitted Transferee or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(v) the Leased Premises shall be vacated or abandoned, or remain unoccupied without the prior written consent of the Landlord for fifteen (15) consecutive days or more while capable of being occupied;
(vi) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(vii) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; pr a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; then the Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by statute or otherwise:
(A) to remedy or attempt to remedy any default of the Tenant, ad in so doing to make any payments due to or alleged to be due b the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such default shall be payable by the Tenant to the Landlord on demand;
(B) with respect to unpaid overdue Rent, to the payment by the Tenant of the Rent and of interest (which said interest shall be deemed included herein in the term "Rent") thereon at a rate equal to the lesser of three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on maximum amount allowed under the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative laws of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth jurisdiction in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same Building is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.located;
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Bridge Loan Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the likeSubsidiary, sell any 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 cash or on credit, as the Agent, in its sole discretion, may elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Agents 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 observeCollateral or any securities, perform guarantees or insurance applying thereon, without notice to or the consent of the Bridge Loan Borrower or the Subsidiary, without affecting the Bridge Loan Borrower’s or the Subsidiary’s liability under this Agreement or the Notes. Each of the Bridge Loan Borrower and comply with the Subsidiary waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives Bridge Loan Borrower or the Borrower written Notice of DefaultSubsidiary may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Events of Default shall occur or shall exist and be continuing, then in any such event, the Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the 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 Bridge Loan Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsSubsidiary expressly waive.
(d) The discovery Subject to the terms of the Intercreditor Agreement, the Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata , whether on account of principal or interest or otherwise as the Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Bridge Loan Borrower or neglect of third-parties the Subsidiary or as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Bridge Loan Borrower shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) Upon the occurrence of any Event of Default, the Bridge Loan Borrower or 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 designated by the Agent The filing 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 petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 daysbond.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth Default, the Bridge Loan Borrower shall assign all of its rights, title and interests in subsections 9.1
the leases listed on Schedule 9(f) hereto (athe “Leases”) through 9.1(h) above; to the Buyers, and shall use its reasonable best efforts to cause each of the landlords under each of the Leases to consent to such assignment, to the extent such consent is required under the Leases. If the Bridge Loan Borrower is not permitted to assign any or (b) upon all of the occurrence Leases pursuant to the terms of the Leases, the Bridge Loan Borrower shall sublet such Leases to the Buyers on the same terms and continuance of any event which, with conditions as the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.Leases.
Appears in 1 contract
Samples: Security Agreement (Federal Sports & Entertainment, Inc.)
Events of Default and Remedies. 9.1 The Any one or more of the following events and circumstances shall constitute an "Event of Default" :
A. the Borrower shall fail to pay any amounts required to be paid by the Borrower under this Agreementthe Notes, the occurrence Borrower Documents or any other indebtedness of which the Borrower to the Banks or any material indebtedness to any third party whether any such indebtedness is now existing or hereafter arises and whether direct or indirect, due or to become due, absolute or contingent, primary or secondary or joint or joint and several; or
B. any Guarantor shall entitle fail to pay any amounts required to be paid by the Lender Guarantor under the Guaranty or any other indebtedness of the Guarantor to pursue the Banks or any material indebtedness to any third party whether any such indebtedness is now existing or hereafter arises and all rights whether direct or indirect, due or to become due, absolute or contingent, primary or secondary or joint or joint and remediesseveral; or
C. the Borrower or any Guarantor shall fail to observe or perform any covenant, legal and equitable, available condition or agreement to be observed or performed by it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, Documents or (iii) on the day after sending such written notice to the Borrower by any other document related hereto for a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following the date upon which the Lender gives after written notice, specifying such default and requesting that it be remedied, given to the Borrower written Notice or the Guarantors by the Banks, unless the Banks shall agree in writing to an extension of Default.such time prior to its expiration, or for such longer period as may be reasonable necessary to remedy such default (other than defaults which can be cured by a money payment) provided that the Borrower and the Guarantors are proceeding with reasonable diligence to remedy the same; or
(cD. the Borrower or any Guarantors shall be in default in the performance of any covenants or obligation under any other document or instrument heretofore or hereafter executed and delivered to the Banks by such party in connection with any other loan or credit transaction(s) Failure and such default is not cured within the period, if any, allowed by such documents for the cure thereof; or
E. the Borrower or any Guarantor shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to duly and punctually payany present or future state or federal bankruptcy act or under any similar federal or state law, observe and discharge all Indebtedness and other obligations or shall be adjudicated to be bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall be unable to pay its debts generally as they become due; or if an order for relief under any present or future federal bankruptcy act or similar state or federal law shall be entered against the Borrower or any Guarantor; or if a petition or answer requesting or proposing the entry of such order for relief or the adjudication of the Borrower or any Guarantor as a debtor or to be bankrupt or its reorganization under any third partypresent or future state or federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or if a receiver, unless the same is being contested in good faith by appropriate proceedings and trustee or liquidator of the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by any Guarantor or of all or substantially all of the Lender assets of the Borrower or any material inaccuracy Guarantor; or the Collateral, or any part thereof, shall be appointed in any statementproceeding brought against the Borrower or any Guarantor and shall not be discharged within ninety (90) days of such appointment; or if the Borrower or any Guarantor shall consent to or acquiesce in such appointment; or if any property of the Borrower or any Guarantor (including, assurancewithout limitation, representationthe estate or interest of the Borrower or any Guarantor in the Collateral, covenant, warranty, term or condition any part thereof) shall be levied upon or attached in any proceeding; or
F. final judgment(s) for the payment of money in excess of $100,000 and not covered by insurance shall be rendered against the Borrower or any Guarantor and shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed; or
G. the Borrower or any Guarantor shall be or become insolvent (whether in the equity or bankruptcy sense); or
H. any representation or warranty made by the Borrower contained in this Agreement or any Guarantor herein or in any document delivered or related hereto shall prove to be delivered untrue or misleading in any material respect, or any statement, certificate or report furnished hereunder or under any of the foregoing documents by or on behalf of the Borrower pursuant or any Guarantor shall prove to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault be untrue or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or misleading in any other Loan Document, material respect on the date when the facts set forth and recited therein are stated or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by certified; or against I. the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeGuarantor shall liquidate, 11 U.S.C. ss. 101wind up, et seq.merge, and any amendments theretodissolve, terminate or suspend its respective business operations, or any similar law sell all or regulationsubstantially all of its respective assets, whether federal, state or local, not dismissed within 30 days.without the prior written consent of the Banks; or
(f) The commencement of a proceeding by or against J. the Borrower or any Affiliate under Guarantor shall sell, dispose of, lease, mortgage, assign, sublet or transfer any statute of its right, title or other law providing for an assignment for interest in or to the benefit of creditors, Collateral (except as expressly provided herein or in the appointment of a receiver, Security Agreement or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(gthe Guarantor Security Agreements) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor without the prior written consent of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) aboveBanks; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.or
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (First Team Sports Inc)
Events of Default and Remedies. 9.1 10.1 The following events shall constitute an "Event be Events of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsLease:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same Tenant shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, payment of rent or other payments required of Tenant and such failure shall continue for delivery to the Borrower.fifteen (15) days;
(b) Failure Tenant shall default in the performance or observance of any other agreement or condition on its part to observe, perform be performed or observed under this Lease and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that shall not cure such default has not been cured prior to the expiration of within thirty (30) days following after due written notice thereof to Tenant; provided, however, if such default is of such a nature that the same cannot be completely cured within the thirty (30) day cure period, the cure period shall be extended for as long as Tenant shall be proceeding with reasonable diligence and good faith to cure the default;
(c) As a result of action or inaction by Tenant, any person shall levy upon, or take this leasehold interest or any part thereof upon execution, attachment or other process of law, and such levy shall not be discharged within sixty (60) days;
(d) Tenant shall make an assignment of its property for the benefit of creditors;
(e) any order for relief under the United States Bankruptcy Act is entered with respect to Tenant; and not discharged within sixty (60) days; or
(f) a receiver, trustee or assignee shall be appointed and not removed within sixty (60) days for the whole or any part of Tenant's property.
10.2 Upon the occurrence of an Event of Default the Landlord may do any one or more of the following:
(a) Perform for the account of Tenant any such default of Tenant and immediately recover as additional rent any expenditures made and the amount of any obligations incurred in connection therewith plus interest of two (2%) percent per annum above the Prime Rate of interest of Fleet Bank (the "Lease Interest Rate") for such expenditures from the date of any such expenditure and a late charge for payments of rent past due at the Lease Interest Rate applied from the due date of each rent installment to the date of payment;
(b) At its option, Landlord may serve upon which Tenant either (i) notice that this Lease is terminated or (ii) a Summary Process Complaint, and thereupon this Lease and the Lender gives term hereof granted, as well as the Borrower written Notice right, title and interest of Defaultthe Tenant hereunder, shall wholly cease and expire and become void (except as to Tenant's liability). Thereupon, Tenant shall immediately quit and surrender to Landlord the Demised Premises, and Landlord may enter into and repossess the Demised Premises and remove all occupants thereof and, at Landlord's option, any property thereon without being liable to prosecution or damages therefor. No such expiration or termination of this Lease shall relieve Tenant of its liability and obligations under this Lease.
(c) Failure Re-enter and repossess the Demised Premises and any part thereof and attempt in its own name, as agent for Tenant if this Lease not be terminated or in its own behalf if this Lease be terminated, to duly relet all or any part of such Demised Premises for and punctually payupon such terms and to such persons, firms or corporations and for such period or periods as Landlord, in its sole discretion, shall determine, including the term beyond the termination of this Lease; and Landlord shall not be required to accept any tenant offered by Tenant or observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith instruction given by appropriate proceedings and the Borrower has set aside on its books adequate reserves Tenant about such reletting or do any act or exercise any care or diligence with respect to such Indebtedness reletting or other obligations.to the mitigation of damages. For the purpose of such reletting, Landlord may decorate or make repairs, changes, alterations or additions in or to the Demised Premises to the extent deemed by Landlord desirable or convenient; and the cost of such decoration, repairs, changes, alterations or additions shall be charged to and be payable by Tenant as additional rent hereunder, as well as any reasonable brokerage and legal fees expended by Landlord; and any sums collected by Landlord from any new tenant obtained on account of the Tenant shall be credited against the balance of the rent due hereunder as aforesaid. Tenant shall pay to Landlord monthly, on the days when the rent would have been payable under this Lease, the amount due hereunder less the amount obtained by Landlord from such new tenant; and
(d) The discovery If upon the occurrence of an Event of Default by the Lender Tenant, the Landlord shall employ the services of counsel to enforce any provisions of this Lease, the Tenant shall pay (as additional rent), on demand, the Landlord's costs thereof and any other expenses of the collection of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderamounts due hereunder.
(e) The filing In case of a petition any such termination, Tenant will indemnify Landlord each month against all loss of rent and all obligation which Landlord may incur by reason of any such termination between the time of termination and the expiration of the term of the Lease; or at the election of Landlord, exercised at the time of the termination or at any time thereafter, Tenant will indemnify Landlord each month until the exercise of the election against all loss of rent and other obligations which Landlord may incur by reason of such termination during the Borrower or any Affiliate seeking relief under period between the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.time of the termination and the exercise of the election, and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement upon the exercise of a proceeding the election Tenant will pay to the Landlord as damages such amount as at the time of the exercise of the election represents the amount by or against which the Borrower or any Affiliate under any statute or other law providing for an assignment rental value of the Demised Premises for the benefit of creditors, period from the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor exercise of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control election until the expiration of the Borrowerterm shall be less than the amount of rent and other payments provided herein to be paid by Tenant to Landlord during said period. It is understood and agreed that at the time of the termination or at any time thereafter Landlord may rent at a fair rental the Demised Premises, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 and for a term which may expire after the expiration of the term of this Agreement.
9.2 The Lender mayLease, at its optionprovided, terminate its obligation however, that if said premises are rented as aforesaid then the amount of rent received in such case shall be applied to make advances reduce Tenant's liability for rent under this Lease; that Tenant shall be liable for any reasonable expenses incurred by Landlord in connection with obtaining possession of the LoanDemised Premises, with removing from the Demised Premises property of Tenant and persons claiming under it (including warehouse charges), with putting the Demised Premises into good condition for reletting, and with any reletting, including, but without notice limitation, reasonable attorneys' fees and brokers' fees, and that any monies collected from any reletting shall be applied first to the Borrower:
(a) upon foregoing expenses and then to the occurrence payment of rent and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.all other payments due from Tenant to Landlord.
Appears in 1 contract
Samples: Lease (Telaxis Communications Corp)
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events shall constitute an (hereinafter referred to as a "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure the Tenant shall have failed to pay an instalment of Base Rental or of Additional Rent or any other amount payable hereunder when due and such default shall be continuing for a period of more than two (2) days after written notice by the principal Landlord to the Tenant of the amount due;
(b) there shall be a default of or interest with any condition, covenant, agreement or other obligation on the Borrower's present part of the Tenant to be kept, observed or future indebtedness performed hereunder (other than the obligation to the Lenderpay Base Rental, whether Additional Rent or not arising pursuant to this Agreement, when any other amount of money) and as the same such Default shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days after written notice by the Landlord to the Tenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant, after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for seven (7) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; the Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by statute or otherwise:
(i) to remedy or attempt to remedy any Default of the Tenant, and in so doing to make any payments due or alleged to be due by the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the Landlord on demand;
(ii) with respect to unpaid overdue Rent, to the payment by the Tenant of the Rent and of interest (which said interest shall be deemed included herein in the term "Rent") thereon at a rate per annum equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on maximum amount allowed under the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative laws of the Borrower acknowledges receipt of such written notice, or jurisdiction in which the Building is located;
(iii) on to terminate this Lease forthwith by leaving upon the day after sending Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(iv) to enter the Leased Premises as agent of the Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of the Tenant to take possession of any furniture or other property thereon and upon giving ten (10) days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Lease (Certicom Corp)
Events of Default and Remedies. 9.1 The Section 1415.01 Event of Default. Each of the following events shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action ” by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsrespective Party:
(a) Failure to pay the principal failure of RCP (or interest on the Borrower's present or future indebtedness to the Lenderof a third party, whether or not arising pursuant to this AgreementBliss Sports, when and as the same shall be due and payable, whether by acceleration Bliss Sports II or otherwise; provided that such default , which has not been cured prior agreed in writing to fulfill RCP’s obligations) to obtain and maintain or to cause a third party to obtain or maintain the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower insurance required by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Article XII XIII hereof;
(b) Failure any representation or warranty made by Bliss Sports or Bliss Sports II herein or in any written statement or certificate furnished to observea Party by another Party with respect to the performance of this Agreement, perform and comply with proves untrue in any material respect as of the obligations evidenced date of the issuance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has making thereof which is not been cured prior to the expiration of corrected or brought into compliance within thirty (30) days following after the date upon which the Lender recipient Party gives the Borrower Party which gave the untrue written Notice statement or certificate a written notice specifying such untruth and requiring it to be remedied; provided, that if such untruth cannot be fully remedied within such thirty (30-) day period, but can reasonably be expected to be fully remedied and the defaulting Party is diligently attempting to remedy such untruth, such untruth shall not constitute an event of Default.default if the defaulting Party shall immediately upon receipt of such notice diligently attempting to remedy such untruth and shall thereafter prosecute and complete the same with due diligence and dispatch; or
(c) Failure to duly and punctually payany judgment which is final, observe and discharge all Indebtedness and other obligations writ or warrant of the Borrower to attachment or any third partysimilar process shall be entered or filed against a Party which remains unvacated, unless the same is being contested unpaid, unbonded, unstayed or uncontested in good faith by appropriate proceedings and for a period of ninety (90) days; provided, however, that none of the Borrower has set aside on its books adequate reserves foregoing shall constitute an event of default unless the amount of such judgment, writ, warrant of attachment or similar process, together with respect to the amount of all other such Indebtedness judgments, writs, warrants or other obligations.similar processes so unvacated, unpaid, unbonded, unstayed or uncontested, exceeds $2,000,000; or
(d) The discovery the entry of a decree or order by a court having jurisdiction in the Lender premises for relief in respect of a Party, or adjudging a Party a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, adjustment or composition of or in respect of a Party under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for a Party or any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any material inaccuracy such decree or order unstayed and in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf effect for a period of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect one hundred twenty (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.120) consecutive days; or
(e) The the commencement by a Party of a voluntary case, by it of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to a Party of bankruptcy or insolvency proceedings against it, or the filing by it of a petition by or against the Borrower answer or any Affiliate consent seeking reorganization, arrangement or relief under the Federal United States Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and Code or any amendments theretoother applicable federal or state law, or the consent or acquiescence by it to the filing of any such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(fofficial) The commencement of a proceeding by or against the Borrower Party or any Affiliate under any statute substantial part of its property, or other law providing for the making by it of an assignment for the benefit of creditors, or the appointment admission by it in writing of a receiverits inability or its failure to pay its debts generally as they become due, or the taking of corporate action by a Party in furtherance of any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.such action; or
(gf) The garnishmentany default by a Party in the performance, attachmentor breach, levy or other similar action taken by or on behalf of any creditor covenant or agreement of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change such Party in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event such default or breach for a period of Default set forth in subsections 9.1
thirty (a30) through 9.1(hdays after the other Party entitled to performance of such covenant or agreement has been delivered to defaulting Party a written notice specifying such default or breach and requiring it to be remedied; provided, that if such default or breach cannot be fully remedied within such thirty (30) above; day period, but can reasonably be expected to be fully remedied and the defaulting Party is diligently attempting to remedy such default or (b) upon the occurrence and continuance of any event whichbreach, with the giving of notice such default or the lapse of time, or both, would breach shall not constitute an Event event of Default default if defaulting Party shall, immediately upon receipt of such notice, diligently attempt to remedy such default or (C) upon breach and shall thereafter prosecute and complete the death or disability of Xxxxx X.same with due diligence and dispatch.
Appears in 1 contract
Samples: Development Agreement
Events of Default and Remedies. 9.1 SECTION 3.1. Remedies in Case of an Occurrence of an Event of Default The following events occurrence of any event, or the existence of any condition, that is specified as an "Event of Default" under the Indenture or any other Security Document shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwisehereunder. The Occurrence of an An Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to occur if the Collateral Agent should receive at any time following the closing of the transaction a Secretary of State's Report indicating that the Collateral Agent's security interest is not prior to all other security interests or other interests reflected in the report, other than Permitted Collateral Liens. If an Event of Default shall have been given occurred and be continuing, Mortgagee may, but shall not be obligated to, in addition to any other action permitted by law (and not limited in any manner by the remedies contained in the Notes and the Indenture), take one or more of the following actions, to the greatest extent permitted by applicable local law:
3.1.1 By written notice to Mortgagor, the Mortgagee may, and shall, upon the request of the holders of not less than 25% in aggregate principal amount of the outstanding Notes, declare the principal of and accrued interest on, all the Secured Obligations to be due and payable immediately;
3.1.2 Personally, or by its agents or attorneys, (i) enter into and upon all or any part of the Mortgaged Property and exclude Mortgagor, its agents and servants wholly therefrom, (ii) use, operate, manage and control the Premises, the Real Estate Fixtures and the Equipment and conduct the business thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Mortgagee may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the date business thereof and exercise all rights and powers of personal delivery Mortgagor with respect thereto either in the name of such written notice to a GuarantorMortgagor or otherwise, or (vi) collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and any or every part thereof;
3.1.3 With or without entry, personally or by its agents or attorneys, (i) sell the Mortgaged Property and all estate, right, title and interest, claim and demand therein at one or more sales in one or more parcels, in accordance with the provisions of Section 3.2 or (ii) on institute and prosecute proceedings for the date on which a duly authorized representative complete or partial foreclosure of the Borrower acknowledges receipt Lien and security interests created and evidenced hereby; or
3.1.4 Take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of such written noticeany covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the execution of any power granted in this Mortgage, or (iii) on for any foreclosure hereunder, or for the day after sending such written notice enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. Notwithstanding anything to the Borrower contrary in this Mortgage, if Mortgagor is in breach of a covenant, obligation or representation qualified by a commonly recognized overnight courier serviceMaterial Adverse Effect, then (i) if such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice breach is due to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any existence of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
type referred to in clause (hi) Any change in control of the Borrowerdefinition of such term, Madison Liquidity Investors 104, MACG from that disclosed then Mortgagee shall be entitled to those remedies set forth in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) Article III upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default resulting from such breach, and (ii) if such breach is due to the existence of a Material Adverse Effect of the type referred to in clause (ii) of the definition of such term, then (x) Mortgagee's remedies under this Mortgage shall be limited to an action for specific performance with respect to the performance of such covenant or obligation and (Cy) upon the death or disability such breach shall be deemed not to be and not to give rise to an Event of Xxxxx X.Default.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp)
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default”, any one an "“Event of Default" under this Agreement”), the occurrence of which party not in default shall entitle have the Lender right to pursue exercise any and all rights and remediesor remedies available in this Lease, legal and equitableat law or in equity, available subject to it under any Loan Document or otherwisethe limitations set forth herein. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall be:
(ai) Failure Tenant’s failure to pay the principal any rental or interest on the Borrower's present or future indebtedness other sum of money payable hereunder when due combined with Tenant’s subsequent failure to the Lendermake such payment within five (5) days after written notice thereof to Tenant of such failure (provided, whether or not arising pursuant to this Agreementhowever, when and as the same that Tenant shall be due entitled to no more than two (2) such notices in any Lease Year and payable, whether by acceleration or otherwise; provided that such thereafter shall be in default has not been cured prior to the expiration of ten without notice if any payment is more than five (105) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of past due during such written notice to a Guarantor, or Lease Year);
(ii) on the date on which a duly authorized representative Failure by either party to perform any other of the Borrower acknowledges receipt of such written noticeterms, covenants or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth conditions contained in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has this Lease if not been cured prior to the expiration of remedied within thirty (30) days following 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 be necessary to remedy the default and shall not thereafter complete such act or acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or 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 date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness petition or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))appointment, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement; or
(iv) Tenant vacates, abandons or fails to operate in the appointment of a receiver, Premises or any other similar law substantial part thereof or regulation, whether federal, state allows its leasehold estate to be taken under any writ of execution and such writ is not vacated or local, not dismissed set aside within 30 thirty (30) days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) In addition to its other remedies, Landlord, upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default by Tenant, shall have the immediate 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, all without being guilty of trespass, forcible entry, detainer or other tort, or being liable for any damages caused thereby.
(Cc) Upon an Event of Default, Landlord may, separately from or in conjunction with the remedies provided in subparagraphs (b) and (d), and with or without terminating this Lease, initiate an action for distress or bring a suit for rent, costs, expenses and other damages, including liquidated damages as hereafter provided. In addition to Annual Rental due and other costs resulting from Tenant’s breach, the parties agree that if Tenant breaches this Lease, Landlord will continue to suffer damages for the remainder of the term of this Lease, which damages may be difficult or impossible to determine. Landlord will suffer these damages regardless of whether Landlord has terminated the Lease or whether Tenant has abandoned or vacated the Premises. Therefore, the parties agree that as a reasonable pre-estimate of said damages and not as a penalty, Tenant shall pay Landlord, as liquidated damages for the failure of Tenant to observe and perform said Tenant’s covenants herein contained, said amount being immediately due and payable, the sum of the Annual Rental, which, if the Lease had not been terminated, would have been paid by Tenant to Landlord for the balance of the term of this Lease, discounted to the date of termination at the then current rate of interest per annum as issued periodically by First Union National Bank (the “Discount Rate”). If the Premises or any part thereof are relet by Landlord for the unexpired term of this Lease, or any part thereof, before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of Annual Rental reserved upon such reletting discounted to the death date of termination at the Discount Rate shall be subtracted from the total liquidated damages due.
(d) In the event that Tenant abandons or disability vacates the Premises, Landlord may, but shall not be obligated to, with or without terminating this Lease, relet all or any part of Xxxxx X.the Premises for the account of Tenant for such rent and upon such terms to such person, firm or corporation and for such period or periods as Landlord in Landlord’s sole discretion shall determine. Landlord shall not be required to accept any tenant offered by Tenant, to observe any instruction given by Tenant about such reletting or do any act or exercise any care or diligence with respect to such reletting or to the mitigation of damages of Tenant. For the purpose of such reletting, Landlord may change the locks or make repairs, changes, alterations or additions in or to the Premises to the extent deemed by Landlord desirable or convenient. Upon such reletting, all rentals received by Landlord from such reletting shall be applied in the following order: (i) to the payment of any indebtedness other than Annual Rental due hereunder from Tenant to Landlord; (ii) to the payment of any costs and expenses of such reletting, including commissions, brokerage fees and attorneys’ fees and, if any, costs of such alterations and repairs; and (iii) to the payment of Annual Rental due and unpaid hereunder. No such re-entry or taking of possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice expressing such intention is given to Tenant, or unless the termination hereof is decreed by a court of competent jurisdiction. Notwithstanding any such re-entry without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach if not by that time cured.
(e) Upon any default by Landlord under this Lease, Tenant may exercise any right or remedy Tenant may have at law or in equity with respect to such default.
Appears in 1 contract
Samples: Lease Agreement (Amber Road, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Collateral Agent shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Collateral Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Note Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Collateral Agent may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable, provided that at least ten (C10) days’ prior written notice of the time and place of any such sale shall be given to the Pledgor. The Collateral Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Collateral Agent as Pledged Collateral and all cash proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Collateral Agent, be held by the Collateral Agent as collateral for, and/or then or disability at any time thereafter applied (after payment of Xxxxx X.any amounts payable to the Collateral Agent pursuant to Section 10) in whole or in part by the Collateral Agent against, all or any part of the Notes Obligations in accordance with the terms of the Indenture. Any surplus of such cash or cash proceeds held by the Collateral Agent and remaining after payment and performance in full of the Notes Obligations shall be paid over to the Pledgor or its order.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Events of Default and Remedies. 9.1 The (a) Borrower shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) Borrower shall fail to pay any amount payable in respect of any Secured Obligations when due (including the expiration of any applicable grace periods);
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to Mortgagee by Borrower in connection with any of the occurrence Secured Obligations, including any warranty made by Borrower through the submission of which shall entitle the Lender any schedule, statement, certificate or other document pursuant to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events Mortgage, shall be false or misleading in any material respect; or
(iii) there shall exist any Event of Default are as follows:
(a) Failure to pay defined under the principal or interest on Loan Agreement. Upon the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration occurrence of ten (10) days following the date upon which the Lender gives the Borrower written Notice any Event of Default. In this Section 9, Notice of Default shall be deemed Mortgagee, at its option, may exercise any rights and remedies provided to have been given Agent under the Loan Agreement and/or available at law or equity, including all rights and remedies provided under the Uniform Commercial Code or the Convention in any jurisdiction where enforcement is sought, which include but are not limited to, the following: (i) on without notice accelerate the date maturity of personal delivery any part or all of such written notice the Secured Obligations and terminate any agreement for the granting of further credit to a Guarantor, or Borrower; (ii) on the date on which a duly authorized representative sell, lease or otherwise dispose of the Borrower acknowledges receipt of such written notice, Collateral at public or private sale; (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS transfer any Collateral into its own name or the like, or that of its nominee; (iv) retain Collateral in satisfaction of the Secured Obligations, with notice of such retention sent to Borrower as required by law; (v) notify any parties obligated on any Collateral consisting of Accounts, Instruments, Chattel Paper, chooses in action or the third day after sending such written notice like to make payment to Mortgagee and enforce collection of any Collateral; (vi) file any action or proceeding which Mortgagee deems necessary or appropriate to protect and preserve the right, title and interest of Mortgagee in the Collateral; (vii) exercise its banker's lien or right of setoff in the same manner as though the credit were unsecured and (viii) apply all or a portion of sums received or collected from or on account of Collateral, including the proceeds of any sales thereof, to the Borrower payment of the costs and expenses incurred in preserving and enforcing rights of Mortgagee including reasonable attorneys' fees (including the reasonably allocated costs of Mortgagee's in-house counsel, but in no event including general overhead and administrative expenses or expenses in excess of the cost of work if performed by facsimile (comparable outside counsel), and after application of such sums to both numbers the Secured Obligations as set forth in Section 16.7) or by depositing the same Loan Agreement, Mortgagee shall account to Borrower for any surplus remaining thereafter, and shall pay such surplus to the party entitled thereto, including any second secured party who has made a proper demand upon Mortgagee and has furnished proof to Mortgagee as requested in the United States mailmanner provided by law; in like manner, postage prepaid, for delivery Borrower agrees to the Borrowerpay to Mortgagee without demand any deficiency after any Collateral has been disposed of and proceeds applied as aforesaid.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured The exercise by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender Mortgagee of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term one right or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties remedy shall not constitute be deemed a breach waiver or release of this Section 9.1(d)), or in any election against any other Loan Documentright or remedy, or in any other agreement between the and Mortgagee may proceed against Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., Collateral and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding other collateral granted by or against the Borrower or any Affiliate to Mortgagee under any statute other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or bar on any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf future occasion. All property of any creditor of kind held at any time by Mortgagee as Collateral shall stand as one general continuing collateral security for all the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse EffectSecured Obligations and may be retained by Mortgagee as security until all the Secured Obligations are fully satisfied.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon twenty (ii20) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any 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 cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin his, UPS her or the likeits sole discretion, may elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in his, her or its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agent 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 observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting each Grantor’s liability under this Agreement or the Note. Each Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulteach Grantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which him, her or it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness take possession and control thereof without demand or other obligationsnotice and without prior judicial hearing or legal proceedings, which each Grantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5 hereof, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the repayment of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable Note and to the fault payment of amount due to the holders of Notes, pro rata, whether on account of principal or neglect of third-parties interest or otherwise as the Collateral Agent, in his, her or its sole discretion, may elect, and then to pay the balance, if any, to the relevant Grantor or as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth Default, each Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Collateral Agent at a place or places to be designated by the Collateral Agent. The rights of the Collateral Agent under this paragraph to have the Equipment, Inventory and Fixtures assembled and made available to them is of the essence of this Agreement and the Collateral Agent may, at his, her or its election, enforce such right by an action in subsections 9.1
(a) through 9.1(h) above; equity for injunctive relief or (b) upon specific performance, without the occurrence and continuance requirement of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.a bond.
Appears in 1 contract
Samples: Security Agreement (Sincerity Applied Materials Holdings Corp.)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event Principal amount of Default" under this Agreementthe Loan outstanding, the occurrence of which shall entitle plus all interest, costs and all other money owing to the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action immediately become payable upon demand by the Lender against Lender, unless otherwise waived in writing by the Lender, in any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:the following events (each an “Event of Default”):
(a) Failure to pay if the principal Borrower shall default in any payment of Principal, interest or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, other amount when and as the same shall be due is required hereunder and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continued for a period of ten seven (107) days following the date upon which after notice in writing has been given by the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, specifying such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.default;
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives if the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness shall become insolvent or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, or if an order be made or an effective resolution be passed for the appointment winding-up, merger or amalgamation of the Borrower or if the Borrower shall be declared bankrupt or if a receivercustodian or receiver be appointed for the Borrower under the Bankruptcy and Insolvency Act (Canada), or if a compromise or arrangement is proposed by the Borrower to its creditors or any class of its creditors, or if a receiver or other officer with like powers shall be appointed for the Borrower; or
(c) if the Borrower defaults in observing or performing any other similar law covenant or regulation, whether federal, state agreement of this Agreement on its part to be observed or local, not dismissed within 30 daysperformed and such default has continued for a period of seven (7) days after notice in writing has been given by the Lender to the Borrower specifying such default.
(g) 7.2 The garnishmentremedies, attachmentrights and powers of the Lender under this Agreement and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, levy rights or other similar action taken by powers of the Lender and no delay or on behalf omission in exercise of any creditor such remedy, right or power will exhaust such remedies, rights or powers or be construed as a waiver of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effectthem.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Credit Facility Agreement (Niocorp Developments LTD)
Events of Default and Remedies. 9.1 The (a) If any one or more of the following events shall have occurred and be continuing with respect to the Securities, it shall constitute an "“Event of Default" under this Agreement” hereunder:
(i) the Bank shall consent to the appointment of a receiver or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the occurrence Bank or all or substantially all of which the property of the Bank; or
(ii) a court having jurisdiction in the premises or any administrative or governmental agency or body shall entitle enter a decree or order for the Lender appointment of a receiver or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to pursue any the Bank or all or substantially all of the property of the Bank, and all rights such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; then and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under in each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events case that an Event of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given described in clause (i) on the date of personal delivery of such written notice to a Guarantor), or (ii) occurs and is continuing, unless the principal of and interest on the date Securities shall have already become due and payable, the Required Holders, by notice in writing to the Bank signed by such Holders, may declare the principal of and interest on which a duly authorized representative the Securities to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Agreement or in the Securities to the contrary notwithstanding; provided however, that (i) the foregoing remedy shall not apply, and the Holders right to accelerate as aforesaid shall be postponed, in the event that the provisions of Section 2.10 require that the payment of any indebtedness or any other obligations to the Holders must be subordinated and postponed until satisfaction in full of Senior Debt or other obligations described in Section 2.10, and (ii) the principal amount and accrued interest on the Securities shall not become due and payable pursuant to this Section 8(a) without the prior written consent of the Borrower acknowledges receipt OTS if the Bank is undercapitalized, significantly undercapitalized or critically undercapitalized as described in 12 C.F.R. §565.4(b), fails to meet its regulatory capital requirements under 12 C.F.R. Part 567, or, if after giving effect to such payment, the Bank would fail to meet any of such written notice, standards or (iii) on the day after sending such written notice to the Borrower extent otherwise prohibited by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on capital regulations of the third day after sending such written notice OTS. The Bank shall apply to the Borrower by facsimile (OTS for any such required prior written consent upon receipt from the registered holder of the Securities of the notice referred to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerpreceding sentence.
(b) Failure The Holders of a majority in aggregate principal amount of the Securities by written notice to observe, perform the Bank may rescind an acceleration and comply its consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered and if all existing Events of Default with respect to Securities have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the obligations evidenced or secured by a Loan Document, other than parties hereto shall continue as provided in Sections 9.1(a) above; provided that though no such default has not proceeding had been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulttaken.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default occurs and is continuing, subject to Section 2.10 (which shall control over and limit the exercise of any rights or (C) remedies by the Holders under this Section 8), each of the Holders may pursue any available remedy to collect the payment of principal of or interest on, the Securities or to enforce the performance of any provision of the Securities or this Agreement. A delay or omission by any of the Holders in exercising any right or remedy occurring upon an Event of Default shall not impair the death right or disability remedy or constitute a waiver of Xxxxx X.or acquiescence on the Event of Default. All remedies are cumulative to the extent permitted by law.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The term "Event of Default", wherever used herein, shall mean any of the following events under this Lease: (i) Lessee breaches its obligation to pay Rent or any other sum when due and fails to cure the breach within ten (10) days; or (ii) Lessee breaches any of its insurance obligations under Section 9; or (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor to Lessee; or (iv) any representation or warranty made by Lessee in connection with this Lease shall constitute be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligor for any of the obligations hereunder (collectively "Guarantor") becomes insolvent or ceases to do business as a going concern; or (vi) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within sixty (60) days of the filing date; or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii)) there occurs an "Event of Default" under this Agreement, and as defined in any other agreement by and between Lessor and Lessee.
(b) Upon the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and so long as the same shall be due and payablecontinuing, whether by acceleration Lessor may, at its option, at any time thereafter, exercise one or otherwise; provided that such default has not been cured prior to more of the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9remedies, Notice of Default as Lessor in its sole discretion shall be deemed to have been given lawfully elect: (i) on demand that Lessee immediately pay as liquidated damages, for loss of a bargain and not as a penalty, an amount equal to the date Stipulated Loss Value of personal delivery the Aircraft, computed as of the Basic Term Rent Date prior to such written notice demand together with all Rent and other amounts due and payable for all periods up to a Guarantor, or and including the Basic Term Rent Date following such demand; (ii) on demand that Lessee pay all amounts due for failure to maintain or return the date on which a duly authorized representative of Aircraft as provided herein and cause Lessee to assign to Lessor Lessee's rights under any manufacturer's service program contract or any extended warranty contract in force for the Borrower acknowledges receipt of such written notice, or Aircraft; (iii) on proceed by appropriate court action, either at law or in equity, to enforce the day after sending such written notice performance by Lessee of the applicable covenants of this Lease or to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or recover damages for breach hereof; (iv) on the third day after sending such written by notice in writing terminate this Lease, whereupon all rights of Lessee to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any use of the obligations evidenced Aircraft or secured by a Loan Documentany part thereof shall absolutely cease and terminate, other than and Lessee shall immediately return the Aircraft in accordance with Section 10, but Lessee shall remain liable as provided in Sections 9.1(aSection 10; (v) aboverequest Lessee to return the Aircraft to a designated location in accordance with Section 10; provided that such default has not been cured prior (vi) peacefully enter the premises where the Aircraft may be and take possession of the Aircraft; (vii) sell or otherwise dispose of the Aircraft at private or public sale, in bulk or in parcels, with or without notice, and without having the Aircraft present at the place of sale; (viii) lease or keep idle all or part of the Aircraft; (ix) use Lessee's premises for storage pending lease or sale or for holding a sale without liability for rent or costs; (x) collect from Lessee all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto; and/or (xi) declare any Event of Default under the terms of this Lease to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice be an "Event of Default" under and as defined in any other agreement between Lessor and Lessee.
(c) Failure Lessor shall have the right to duly and punctually payany proceeds of sale, observe and discharge all Indebtedness and lease or other obligations disposition of the Borrower Aircraft, if any, and shall have the right to apply same in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in enforcing its rights under this Lease or in taking, removing, holding, repairing, selling, leasing or otherwise disposing of the Aircraft; then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Lease; then (iii) to reimburse to Lessee any third party, unless the same is being contested sums previously paid by Lessee as liquidated damages; and (iv) any surplus shall be paid to Lessee. Lessee shall pay any deficiency in good faith by appropriate proceedings (i) and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations(ii) immediately.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.foregoing remedies are cumulative, and any amendments theretoor all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance Waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance shall not be a waiver of any event which, with the giving of notice other or the lapse of time, or both, would constitute an subsequent Event of Default or (C) upon the death or disability of Xxxxx X.Default.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one an "“Event of Default" under this Agreement”), the occurrence of which party not in default shall entitle have the Lender right to pursue exercise any and all rights and remediesor remedies available in this Lease, legal and equitable, available to it under any Loan Document at law or otherwisein equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall be:
(ai) Failure Tenant’s failure to pay the principal any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration other sum of money payable hereunder within ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or after same becomes due;
(ii) on the date on which a duly authorized representative Failure by either party to perform any other of the Borrower acknowledges receipt of such written noticeterms, covenants or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth conditions contained in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has this Lease if not been cured prior to the expiration of remedied within thirty (30) days following 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 be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or acts within ninety (90) days after written notice thereof;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or 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 date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness petition or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))appointment, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement; or
(iv) Tenant vacates, abandons or fails to operate in the appointment of a receiver, Premises or any other similar law substantial part thereof or regulation, whether federal, state allows its leasehold estate to be taken under any writ of execution and such writ is not vacated or local, not dismissed set aside within 30 thirty (30) days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) In addition to its other remedies, Landlord, upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default by Tenant, shall have the immediate right, after any applicable grace period expressed herein, to terminate and cancel this Lease and/or terminate Tenant’s right of possession, to reenter and remove all persons and properties from the Premises and dispose of such property as it deems fit, all without 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 Tenant at the time of 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 Tenant shall remain liable to Landlord for the total Annual Rental (Cwhich may at Landlord’s election be accelerated to be due and payable in full as of the Event of Default and recoverable as damages in a lump sum) upon as would have been payable by Tenant hereunder for the death remainder of the term less the rentals actually received from any reletting or, at Landlord’s election, less the reasonable rental value of the Premises for the remainder of the term. In determining the Annual Rental which would be payable by Tenant subsequent to default, the Annual Rental for each Lease Year of the unexpired term shall be equal to the Annual Rental payable by Tenant for the last Lease Year prior to the default. If any rent owing under this Lease is collected by or disability of Xxxxx X.through an attorney, Tenant agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by applicable law. Landlord shall be required to reasonably mitigate its damages.
Appears in 1 contract
Samples: Lease Agreement (Icagen Inc)
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one an "“Event of Default" under this Agreement”), the occurrence of which party not in default shall entitle have the Lender right to pursue exercise any and all rights and remediesor remedies available in this Lease, legal and equitable, available to it under any Loan Document at law or otherwisein equity provided same are exercised in accordance with applicable Legal Requirements. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall be:
(ai) Failure Tenant’s failure to pay the principal when due any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or other sum of money payable hereunder and such failure is not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of within ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such after written notice to a Guarantor, or thereof;
(ii) on the date on which a duly authorized representative Failure by either party to perform any other of the Borrower acknowledges receipt of such written noticeterms, covenants or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth conditions contained in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has this Lease if not been cured prior to the expiration of remedied within thirty (30) days following 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 be necessary to remedy the default and shall not thereafter complete such act or acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or trustee for all or substantially all of Tenant’s assets and such petition or appointment shall not have been set aside within ninety (90) days from the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness petition or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))appointment, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, the appointment or petitions for or enters into an arrangement; or
(iv) Tenant allows its leasehold estate to be taken under any writ of a receiver, execution and such writ is not vacated or any other similar law or regulation, whether federal, state or local, not dismissed set aside within 30 ninety (90) days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) In addition to its other remedies, Landlord, upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default by Tenant, shall have the immediate right, after any applicable grace period expressed herein (but in no event upon less than five (5) days prior written notice), 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, all without 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, Landlord shall 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 Tenant at the time of 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 Tenant shall remain liable to Landlord for the total Annual Rental as would have been payable by Tenant hereunder for the remainder of the term (which may at Landlord’s election be accelerated to be due and payable in full as of the Event of Default and recoverable as damages equal to the net present value of future rent, discounted at the greater of (i) eight percent (8%) or (Cii) upon the death then applicable “discount rate” of the Federal Reserve Bank of Charlotte, North Carolina plus one percent (1.0%) per annum, less the Market Rate (as defined in Exhibit “E” hereof) of the Premises for the remainder of the Term) less the rents actually received from any reletting. In determining the Annual Rental which would be payable by Tenant subsequent to default, the Annual Rental for the unexpired portion of the term shall be equal (on a monthly basis) to the Annual Rental payable by Tenant immediately prior to the default. If any rent owing under this Lease is collected by or disability through an attorney, Tenant agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by applicable law.
(c) In the case of Xxxxx X.Tenant's default as contemplated herein, Landlord shall have a duty to mitigate its damages.
Appears in 1 contract
Samples: Lease Agreement (Shutterfly Inc)
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, .
8.2. Lender shall at all times have the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative of a secured party under the U.C.C. and may be exercised concurrently or successively the Ohio Revised Code as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between law or equity.
8.3. Pledgor expressly acknowledges that Lender shall record this Agreement with the Borrower USCO and the Lender.
(e) The filing USPTO, as appropriate. Contemporaneously herewith, Pledgor shall execute and deliver to Lender the Assignment, which Assignment shall have no force and effect and shall be held by Lender in escrow until the occurrence of a petition by or against an Event of Default; provided, that, anything herein to the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorscontrary notwithstanding, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement.
9.2 The . After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of Lender in the form reflected on the face of the Assignment and Lender may, at in its optionsole discretion, terminate its obligation to make advances of record the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, Assignment with the giving of notice or USCO and the lapse of timeUSPTO, or both, would constitute as appropriate.
8.4. If an Event of Default shall occur, Pledgor irrevocably authorizes and empowers Lender to terminate Pledgor's use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to Pledgor or any other Person or property, all of which Pledgor hereby waives, and upon such terms and in such manner as Lender may deem advisable but subject to the provisions of the Intercreditor Agreement, Lender, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that Pledgor may have therein, at any time, or from time to time. No prior notice need be given to Pledgor or to any other Person in the case of any sale of Collateral that Lender determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case Lender shall give Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, Lender may purchase the death Collateral, or disability any part thereof, free from any right of Xxxxx X.redemption, all of which rights Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, Lender may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as Lender in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, Lender shall at all times have the right to obtain new appraisals of Pledgor or the Collateral, the cost of which shall be paid by Pledgor.
Appears in 1 contract
Samples: Intellectual Property Security Agreement (S&W Seed Co)
Events of Default and Remedies. 9.1 The Section 9.1. Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment when due of any principal on any Note or Application, whether at the stated maturity thereof or at any other time provided for in this Agreement; or default in the payment when due of any interest on any Note or Application or fee, charge or other amount payable by the Borrower's present Company hereunder or future indebtedness under any other Loan Document and the continuance of such default for 2 Business Days after notice thereof to the Company from the Administrative Agent or any Lender;
(b) default in the observance or performance of any covenant set forth in Sections 8.10, whether 8.11, 8.12 or 8.13 hereof;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 20 days after written notice thereof to this Agreement, the Company by the Administrative Agent or any Lender or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by the Administrative Agent;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $15,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods;
(10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Guarantor takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than Xxxxxx X. Xxxxxxxxxx and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.foregoing purposes; or
(gl) The garnishment, attachment, levy any event occurs or other similar action taken by or on behalf condition exists which is specified as an "Event of any creditor of Default" under the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Five-Year Credit Agreement.
9.2 The Lender maySection 9.2. When any Event of Default described in subsections 9.1(a) to 9.1(i), at its optionboth inclusive, terminate its obligation to make advances or subsection 9.1(l) has occurred and is continuing, the Administrative Agent may (and shall, upon request of the LoanRequired Lenders), without by notice to the BorrowerCompany, take any or all of the following actions:
(a) terminate the obligation of the Lenders to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the occurrence Administrative Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) declare the principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind; and
(c) enforce any and all rights and remedies available under the Loan Documents or applicable law.
Section 9.3. When any Event of Default set forth described in subsections 9.1
9.1(j) or (k) has occurred and is continuing, then (a) through 9.1(h) above; the then unpaid balance of the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall immediately become due and payable without presentment, demand, protest or notice of any kind, (b) upon the occurrence obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and continuance of any event whichautomatically terminate, with and (c) the giving of notice Administrative Agent may exercise all remedies available to it under the Loan Documents or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Upon the occurrence of any one or more of the following events shall constitute (the “Events of Default,” any one of an "“Event of Default" under ”), Landlord shall have the right to exercise any rights or remedies available in this AgreementLease, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document at law or otherwisein equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsshall include:
(ai) Failure Tenant’s failure to pay the principal any rental or interest on the Borrower's present or future indebtedness other sum of money payable hereunder within five (5) business days after same becomes due; provided, however, that with respect to the Lenderfirst (1st) such failure by Tenant to pay any rental or other sum of money in any twelve (12) month period, whether within five (5) business days of written notice from Landlord that such sum was due;
(ii) Tenant’s conveyance, assignment, sublease or not arising mortgage of the Premises (or any part thereof) or the Lease, or its attempt to undertake any of the foregoing, without the prior written consent of Landlord (provided such prior consent is required pursuant to the terms of this AgreementLease);
(iii) Tenant’s failure to maintain the insurance coverage required by Xxxxxxx 00, when xxxxx;
(xx) Tenant having become bankrupt or insolvent, or having filed any debtor proceedings, or filed pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or filed a petition for the appointment of a receiver or trustee for all or substantially all of Tenant’s assets and as the same such petition or appointment shall be due and payable, whether by acceleration or otherwise; provided that such default has not have been cured prior to the expiration of ten set aside within sixty (1060) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on from the date of personal delivery of such written notice to a Guarantorpetition or appointment, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement; or
(v) Tenant’s failure to perform any other of the appointment terms, covenants or conditions contained in this Lease if not remedied within thirty (30) days after receipt of a receiverwritten notice thereof, or any other similar law if such default cannot be remedied within such period, Tenant does not within thirty (30) days after written notice thereof commence such act or regulation, whether federal, state acts as shall be necessary to remedy the default and shall not thereafter diligently prosecute such cure and complete such act or local, not dismissed acts within 30 dayssixty (60) days after written notice thereof.
(gb) The garnishment, attachment, levy or other similar action taken by or on behalf Upon the occurrence of any creditor Event of Default, Landlord, with or without terminating this Lease, immediately or at any time thereafter, shall have the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayright, at its option, terminate its obligation to make advances utilize any one or more of the Loan, without notice to the Borrowerfollowing remedies:
(ai) upon Landlord may make any payment required of Tenant and/or re-enter the occurrence Premises and continuance correct or repair any condition which shall constitute a failure on Tenant’s part to keep or perform. Tenant shall reimburse Landlord for any reasonable expenditures made by Landlord in making the payment and/or corrections or repairs within fifteen (15) days after delivery of a statement to Tenant accompanied by reasonable documentation supporting the demand.
(ii) Landlord may demand in writing that Tenant vacate the Premises. Tenant shall vacate the Premises and remove all its property within ten (10) business days of Tenant’s receipt of the notice, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
(iii) Landlord may accelerate and collect all Base Rent, Additional Rent, and other charges which are due or may become due under the Lease for the balance of the Term, after first deducting the fair market value of the Premises for the balance of the Term from the remaining Base Rent and Additional Rent and then discounting the difference to its present value by a factor equal to Landlord’s bank’s then announced prime rate.
(iv) Landlord may re-enter the Premises and remove Tenant and all of Tenant’s property.
(v) Landlord may re-let all or any portion of the Premises for such time, rent, and other terms and conditions as Landlord, in its sole discretion, may deem advisable. Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate the reletting. Tenant shall pay all commercially reasonable costs of the reletting including the commercially reasonable cost of any Event repairs to the Premises. If this Lease shall have not been terminated by Landlord, Tenant shall continue to pay all charges due from Tenant under this Lease up to and including the date of Default set forth beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the Term the difference, if any, between the rent collected from any subsequent tenant or tenants and the rent reserved in subsections 9.1this Lease. In no event shall Tenant be entitled to receive any excess of any rents collected by Landlord over the rents due from it.
(avi) through 9.1(hLandlord may terminate this Lease without notice or demand to vacate the Premises. This Lease shall be deemed to have been terminated by Landlord only upon Landlord’s written notice of termination. Upon termination Landlord shall nevertheless remain entitled to recover from Tenant all sums provided for in subparagraph (v) above; or above as if the Lease were not terminated.
(bc) upon In the occurrence and continuance event of any event whichre-entry of the Premises by Landlord pursuant to any of the provisions of this Lease, with Tenant waives all claims for damages which may be caused by that re-entry except those claims arising from the giving Landlord’s gross negligence or willful misconduct. Tenant shall reimburse the Landlord for any and all losses, costs, expenses (including legal expenses and reasonable attorneys’ fees), and damages suffered by Landlord by reason of notice its re-entry, removal and/or storage of Tenant’s property. No re-entry shall be considered or the lapse construed to be a forcible party.
(d) Upon any actual breach of timethis Lease by Tenant, regardless of whether that breach is, or bothbecomes, would constitute an Event of Default or (C) upon Default, Landlord shall be reimbursed for any and all commercially reasonable expenses incurred by Landlord, including without limitation court costs and attorneys’ fees, in enforcing the death or disability terms and provisions of Xxxxx X.this Lease.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(ai) Failure to pay default in the principal or interest payment of the Termination Value for any Phase on the Borrower's present relevant Option Date, or future indebtedness to in the Lenderpayment of the Termination Value for any Phase on the relevant Cancellation Date or Purchase Closing Date, whether as applicable, or not arising pursuant to this Agreementin the payment of the Termination Value or the Final Rent Payment for any Phase on the relevant Lease Termination Date or Purchase Closing Date, as applicable or in the payment when due of the Scheduled Payment component of Basic Rent for any Phase; or in the payment when due of any Interim Rent or the Floating Rate Payment or Fixed Rate Payment component of Basic Rent for any Phase, and as the same shall be due and payable, whether by acceleration or otherwise; provided that continuance of such default has not been cured prior to for 10 days thereafter; or the expiration default in the payment when due of ten (10) days following any Supplemental Rent for any Phase, or the date upon which amount of any Indemnified Risk or of any other amount due hereunder or under any other Operative Document and the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery continuance of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, default for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.thereafter; or
(cii) Failure the Lessee shall fail to duly observe or perform any covenant contained in Sections 30(a)(vi) or (vii), 30(b)(ii), 30(c) through 30(f), inclusive, and punctually pay30(o) through 30(u), inclusive; or
(iii) the Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those covered by any other paragraph of this Section 17(a)) and discharge all Indebtedness and other obligations such failure shall not have been cured within thirty (30) days after the earlier to occur of (i) written notice thereof has been given to the Lessee by the Lessor or (ii) any officer of the Borrower to Lessee otherwise becomes aware of any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.failure; or
(div) The discovery any representation or warranty made or deemed made by the Lender of any material inaccuracy Lessee herein, in any statement, assurance, representation, covenant, warranty, term or condition other Operative Document by the Borrower contained Lessee or otherwise in this Agreement writing in connection with or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, Lease or any other similar law Operative Document, shall be false or regulation, whether federal, state misleading in any material respect on the date made or local, not dismissed within 30 days.deemed made; or
(gv) The garnishmentan event of default under the Agency Agreement, attachment, levy and such failure shall not have been cured within thirty (30) days after the earlier to occur of (i) written notice thereof has been given to the Lessee by the Lessor or other similar action taken by or on behalf (ii) any officer of the Lessee otherwise becomes aware of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.such failure; or
(hA) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at Lessee shall (1) generally not pay its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) abovedebts as such debts become due; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.or
Appears in 1 contract
Samples: Master Lease Agreement (Flowers Industries Inc /Ga)
Events of Default and Remedies. 9.1 The So long as any of the following events shall constitute have occurred or conditions exist (any such event or condition being herein referred to as an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure Any representation or warranty made by you or any other obligor herein or any certificate, financial statement or other document delivered in connection herewith shall prove to pay the principal have been untrue or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and incorrect in any material respect as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon as of which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be made or deemed to have been given made or repeated; or
(ib) on You shall fail fully to perform or comply with any terms, covenants or provisions of Section 5 subject, in the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative case of the Borrower acknowledges receipt of such written noticecovenants referred to in Section 5(a) hereof, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier serviceapplicable notice provisions and grace periods, such as Federal Expressif any, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any 15.1 of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) aboveCredit Agreement; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.or
(c) Failure You or another obligor shall fail fully to duly and punctually pay, observe and discharge all Indebtedness and perform or comply with any other obligations of the Borrower terms, covenants or provisions set forth herein and such failure shall continue for a period of five (5) calendar days following our notice to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to you or such Indebtedness or other obligations.obligor of such failure; or
(d) The discovery Any Default or Event of Default under the Credit Agreement (other than the Specified Default and Events of Default) 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 Lender 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 material inaccuracy in any statement, assurance, representation, covenant, warranty, term covenant or condition by the Borrower agreement contained in this Agreement the Credit Agreement, the Notes and the other Loan Documents or in any document delivered or instrument pursuant to be delivered which the Obligations to such Bank are evidenced, including as permitted by or on behalf applicable law the obtaining of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other similar law legal or regulation, whether federal, state or local, equitable right of such Bank. The remedies specified herein are cumulative and not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf exclusive of any creditor of the Borrower, other remedy. Our failure or delay to exercise any Affiliate, or remedy after any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any particular Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance shall not operate as a waiver of any event which, with the giving of notice remedy in that or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.in any subsequent instance.
Appears in 1 contract
Samples: Forbearance and Amendment Agreement (Russell-Stanley Holdings Inc)
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events (hereinafter referred to as a "DEFAULT"):
(a) the Tenant shall constitute have failed to pay an "Event instalment of Base Rental or of Additional Rent or any other amount payable hereunder within 5 days following when due. No notice shall be required in the event of a monetary Default" under this Agreement, the occurrence of which ;
(b) there shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute be a default under each of or with any condition, covenant, agreement or other obligation on the part of the Tenant to be kept, observed or performed hereunder (other than the obligation to pay Base Rental, Additional Rent or any other amount of money) and every such Default shall be continuing for a period of more than fifteen (15) days after written notice by the Landlord to the Tenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant, after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other Loan Document. The Lender's persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for fourteen (14) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; the Landlord shall have the following rights and remedies all of which are cumulative and may be exercised concurrently or successively from time not alternative and not to time. Any action by the Lender against any property or party shall not serve to release or discharge exclusion of any other security, property or party additional rights and remedies in connection with this transaction. The Events of Default are as followslaw or equity available to the Landlord by statute or otherwise:
(a) Failure to pay remedy or attempt to remedy any Default of the principal Tenant, and in so doing to make any payments due or interest on alleged to be due by the Borrower's present Tenant to third parties and to enter upon the Leased Premises to do any work or future indebtedness other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the LenderLandlord on demand;
(b) with respect to unpaid overdue Rent, whether or not arising pursuant to this Agreement, when the payment by the Tenant of the Rent and as the same of interest (which said interest shall be due and payable, whether deemed included herein in the term "RENT") thereon at a rate equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice maximum amount allowed under the laws of Default. In the jurisdiction in which the Building is located;
(c) to terminate this Section 9, Notice Lease forthwith by leaving upon the Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of Default shall be deemed the whole and the same to have been given again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(id) on to enter the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Leased Premises as agent of the Borrower acknowledges receipt Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of such written notice, the Tenant to take possession of any furniture or other property thereon and upon giving ten (iii10) on the day after sending such days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
Samples: Lease Agreement (Changepoint Corp)
Events of Default and Remedies. 9.1 (a) The Borrower shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) the Borrower shall fail to pay any amount payable in respect of any Obligation when due (including the expiration of any applicable grace periods).
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action Mortgagee by the Lender against Borrower in connection with any property of the Liabilities, including any warranty made by the Borrower through the submission of any schedule, statement, certificate or party shall not serve other document pursuant to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or false in any material respect.
(iii) on there shall exist any Event of Default as defined under the day after sending Credit Agreement.
(b) Upon the occurrence of any Event of Default which shall be continuing, unless the Mortgagee elects otherwise, the entire unpaid amount of such written of the Liabilities as is not then otherwise due and payable shall become immediately due and payable as provided in the Credit Agreement without notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) demand on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually payThe exercise by the Mortgagee of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between Mortgagee may proceed against the Borrower and the Lender.
(e) The filing of a petition Collateral and any other collateral granted by or against the Borrower or any Affiliate seeking relief under to the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate Mortgagee under any statute other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or bar on any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf future occasion. All property of any creditor of kind held at any time by the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse EffectMortgagee as Collateral shall stand as one general continuing collateral security for all the Obligations and may be retained by the Mortgagee as security until all the Obligations are fully satisfied.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of Xxxxx X.
Appears in 1 contract
