Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”): (i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i); (ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or (iii) The Company shall fail to pay the any part of the Principal when due hereunder; (b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable. (c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 4 contracts
Samples: Convertible Promissory Note (Traios Christos P), Convertible Promissory Note (Digital Power Corp), Convertible Promissory Note (Digital Power Corp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) Default in the payment of any other obligation of the Company in an amount in excess of $100,000; or
(iv) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(v) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 4 contracts
Samples: Promissory Note (Titan Global Holdings, Inc.), Convertible Promissory Note (TheRetirementSolution.com, Inc.), Convertible Promissory Note (IFSA Strongman, Inc.)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurfederal bankruptcy law; or
(iii4) The Company Any representation or warranty made by the Borrower in any Credit Document shall fail to pay be false or misleading in any material respect on the any part date as of the Principal when due hereunder;which made (or deemed made); or
(b5) If an Event Any default by the Borrower shall occur in the performance or observance of Default described above has occurredany term, then the Holder maycondition, without further notice or provision contained in any Credit Document and not referred to the Companyin clauses (1) through (4) above, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts which default shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note continue for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.thirty
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement, Loan Agreement
Events of Default and Remedies. (a) Any If any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event "Events of Default”):") shall occur:
(ia) The Company Debtor shall fail to make any payment in respect of the Liabilities when due; or
(b) any certification, statement, representation, warranty or financial report or statement heretofore or hereafter furnished by or on behalf of Debtor or any subsidiary guarantor of any or all of the Liabilities proves to have been false in any material respect at the time as of which the facts therein set forth were stated or certified or has omitted any material contingent or unliquidated liability or claim against Debtor or any such guarantor; or
(Ac) Debtor or any guarantor of any or all of the Liabilities shall institute fail to perform or observe any proceeding covenant, condition or voluntary case seeking agreement to adjudicate be performed or observed by it bankrupt hereunder or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law guaranty agreement; or
(d) Debtor or any guarantor of any or all of the Liabilities shall be in breach of or in default in the payment and performance of any obligation relating to bankruptcy, insolvency any of the Other Liabilities; or
(e) Debtor or reorganization or relief of debtors, or seeking the entry any guarantor of any order of Debtor's obligations hereunder shall be in breach of or in default in the payment or performance of any obligation owing to any bank, lender, lessor or financial institution, howsoever arising, present or future, contracted for relief or the appointment of a receiveracquired, trusteeand whether joint, custodian several, absolute, contingent, secured, unsecured, matured or other similar official for such the Company unmatured; or
(f) Debtor or any subsidiary guarantor of any or all of the Liabilities shall cease doing business as a going concern, make an assignment for any substantial part the benefit of its propertycreditors, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply pay its debts generally; (C) shall make as they become due, file a general assignment for the benefit petition commencing a voluntary case under any chapter of creditors; or (D) shall take any action to authorize or effect any Title 11 of the actions set forth above in this subsection 4(a)(iUnited States Code entitled "Bankruptcy" (the "Bankruptcy Code");
(ii) Any proceeding shall , be instituted against the Company seeking to adjudicate it a bankrupt or adjudicated an insolvent, or file a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law, rule or regulation or file an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consent to the filing of such a petition or acquiescence in the appointment of a trustee, receiver or liquidator of it or of all or any part of its assets or properties, or seeking the entry of take any action looking to its dissolution or liquidation; or
(g) an order for relief against Debtor or any guarantor of any or all of the Liabilities shall have been entered under any chapter of the Bankruptcy Code or a decree or order by a court having jurisdiction in the premises shall have been entered approving as properly filed a petition seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against Debtor or any guarantor of any or all of the Liabilities under any present or future statute, law, rule or regulation, or within thirty (30) days after the appointment without Debtor's or such guarantor's consent or acquiescence of a receiver, any trustee, custodian receiver or other similar official for the Company liquidator of it or for such guarantor or of all or any substantial part of its propertyor such guarantor's assets and properties, such appointment shall not be vacated, or an order, judgment or decree shall be entered against Debtor or such guarantor by a court of competent jurisdiction and shall continue in effect for any period of ten (10) consecutive days without a stay of execution, or any execution or writ or process shall be issued under any action or proceeding against Debtor whereby the Equipment or its use may be taken or restrained; or
(h) Debtor or any guarantor of any or all of the Liabilities shall suffer an adverse material change in its financial condition as compared to such condition as at the date hereof, and either as a result of such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days change in condition Secured Party deems itself or any of the actions sought Equipment to be insecure; then and in any such proceeding (includingevent, Secured Party may, at the sole discretion of Secured Party, without limitation, the entry notice or demand and without limitation of any order for relief against it rights and remedies of Secured Party under the Uniform Commercial Code, take any one or more of the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orfollowing steps:
(iii1) The Company shall fail to pay the any part Declare all of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note Time Balance to be forthwith due and payable, whereupon such principal the same shall forthwith mature and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable as provided for in paragraph 16 below, provided, however, upon the occurrence of any of the events specified in subparagraphs (f) and (g) above, all sums as specified in this clause (1) shall immediately be due and payable without notice to Debtor (the date on this Note for Principal. In case which Secured Party declares all of the Company shall fail forthwith Time Balance to pay such amountbe due and payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity, the Holder may commence an action or proceeding at law or in equity other appropriate proceedings, whether for the collection specific performance of any agreement contained herein, or for an injunction against a violation of any of the sums so due terms hereof, or in aid of the exercise of any other right, power or remedy granted hereby or by law, equity or otherwise; and
(3) at any time and unpaidfrom time to time, with or without judicial process and the aid or assistance of others, enter upon any premises wherein any of the Equipment may be located and, without resistance or interference by Debtor, take possession of the Equipment on any such premises, and require Debtor to assemble and make available to Secured Party at the expense of Debtor any part or all of the Equipment at any place or time designated by Secured Party; and remove any part or all of the Equipment from any premises wherein the same may prosecute any such action or proceeding to judgment or final decree against Company be located for the purpose of effecting the sale or other obligor disposition thereof; and sell, resell, lease, assign and deliver, grant options for or otherwise dispose of any or all of the Equipment in its then condition or following any commercially reasonable preparation or processing, at public or private sale or proceedings, by one or more contracts, in one or more parcels, at the same or different times, with or without having the Equipment at the place of sale or other disposition, for cash and/or credit, and upon this Noteany terms, wherever situatedat such place(s) and time(s) and to such persons, firms or corporations as Secured Party shall deem best, all without demand for performance or any notice or advertisement whatsoever, except that Debtor shall be given five (5) business days' written notice of the monies adjudicated place and time of any public sale or decreed of the time after which any private sale or other intended disposition is to be payablemade, which notice Debtor hereby agrees shall be deemed reasonable notice thereof. If any of the Equipment is sold by Secured Party upon credit or for future delivery, Secured Party shall not be liable for the failure of the purchaser to pay for same and in such event Secured Party may resell such Equipment. Secured Party may buy any part or all of the Equipment at any public sale and if any part or all of the Equipment is of a type customarily sold in a recognized market or which is the subject of widely distributed standard price quotations Secured Party may buy at private sale and may make payment therefor by application of all or a part of the Liabilities and of all or a part of any Other Liabilities. Any personalty in or attached to the Equipment when repossessed may be held by Secured Party without any liability arising with respect thereto, and any and all claims in connection with such personalty shall be deemed to have been waived unless notice of such claim is made by certified or registered mail upon Secured Party within three business days after repossession. Secured Party shall apply the cash proceeds from any sale or other disposition of the Equipment first, to the reasonable expenses of re-taking, holding, preparing for sale, selling, leasing and the like, and to reasonable attorneys' fees and other expenses which are to be paid or reimbursed to Secured Party pursuant hereto, and second, to all outstanding portions of the Liabilities and to any Other Liabilities in such order as Secured Party may elect, and third, any surplus to Debtor, subject to any duty of Secured Party imposed by law to the holder of any subordinate security interest in the Equipment known to Secured Party; provided however, that Debtor shall remain liable with respect to unpaid portions of the Liabilities owing by it and will pay Secured Party on demand any deficiency remaining with interest as provided for in paragraph 16 below.
Appears in 3 contracts
Samples: Master Loan and Security Agreement (Triangle Pharmaceuticals Inc), Master Loan and Security Agreement (Universal Access Inc), Master Loan and Security Agreement (Digital Impact Inc /De/)
Events of Default and Remedies. 4.1 Each of the following shall constitute an Event of Default under this Agreement:
(a) Any one Pledgor shall default in the performance of any of his agreements herein or more in any instrument or document delivered pursuant to this Agreement or the Debt, including, without limitation, the Line Letter and the Note;
(b) The perfection of any security interest granted Bank in any of the following events which shall have occurred and be continuing shall constitute an event of default Collateral is impaired or in Bank’s reasonable belief is about to become impaired;
(“Event of Default”):c) Any Pledgor:
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventgenerally not, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its propertybe unable to, or shall consent to the commencement against it of such a proceeding or caseadmit in writing its inability to, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; ;
(Cii) shall make a general an assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(iiiii) Any proceeding shall be instituted against the Company seeking file a petition in bankruptcy or for any relief under any law of any jurisdiction relating to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustmentreadjustment of debt, protection, relief dissolution or liquidation;
(iv) shall have any such petition filed against it and the same shall remain undismissed for a period of debtors, 30 days or seeking the entry of an order for relief shall consent or the appointment of acquiesce thereto; or
(v) shall have had a receiver, trustee, custodian or other similar official trustee appointed as a result of any insolvency for the Company all or for any a substantial part of its property;
(d) Any action, and either suit, proceeding or investigation against or affecting any Pledgor before any court or governmental agency which involves forfeiture of any assets of such proceeding Pledgor shall not have been dismissed commenced; or
(e) one or more judgments, decrees or orders for the payment of money in excess of $250,000 in the aggregate shall not have been stayed be rendered against any Pledgor and shall continue unsatisfied and in effect for a period of sixty (60) 60 consecutive days without being vacated, discharged, satisfied or any stayed or bonded pending appeal.
4.2 Upon the occurrence of one or more of the actions sought in foregoing Events of Default and without further consent from any Pledgor, Bank may liquidate so much of the Collateral of such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail Pledgor as is required to pay the Debt of such Pledgor and the costs, expenses and fees described in Section 2.1 hereof. Bank may apply any part such net proceeds in such order or preference as Bank may determine, except that any proceeds derived from the liquidation of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice Collateral shall be applied first by Bank to the Companypayment of any obligations of such Pledgor due to Bank pursuant to the Line Letter and the Note and then to any other Debt of such Pledgor which is outstanding and unpaid.
4.3 In addition, declare the principal amount if any Debt of this Note at the time outstanding, and all other amounts payable under this Note to a Pledgor is not be forthwith paid in full promptly when due and payable, whereupon such principal and all such amounts shall become and be forthwith whether due and payable.
(c) The Company covenants that in case the Principal by lapse of the Note becomes time or by acceleration due and payable by declaration to demand or otherwise, then the Company will pay Bank in cash its discretion may further, upon such terms and in such manner as Bank shall deem advisable as to the Holder Collateral of this Notesuch Pledgor, sell, redeem, assign, transfer or deliver the whole amount that then Collateral, or any portion thereof, and Bank shall have become due and payable on this Note for Principal. In case apply the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection net proceeds of the sums so sale thereof to such Debt and the costs, expenses and fees described in Section 2.1 hereof, whether or not due, in such order or preference as Bank may determine, except that any proceeds derived from the liquidation of the Collateral shall be applied first by the Bank to the payment of any obligations of such Pledgor due to the Bank pursuant to the Line Letter and the Note and then to any other Debt which is outstanding and unpaid, .
4.4 Bank shall provide to the relevant Pledgor at least five (5) days’ notice to such Pledgor of the time and may prosecute place of any such action public sale or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed time after which any private sale is to be payablemade which shall constitute reasonable notification, provided that Bank may sell any Collateral of such Pledgor if such Collateral consists of securities regularly traded on a nationally recognized market or are obligations of the United States.
Appears in 3 contracts
Samples: Secured Line of Credit Agreement (Excelsior Funds Inc), Secured Line of Credit Agreement (Excelsior Tax Exempt Funds Inc), Secured Line of Credit Agreement (Excelsior Funds Trust)
Events of Default and Remedies. The occurrence of any one of the following shall constitute an Event of Default hereunder:
(a) Any one Medical Center fails to pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or more its assignee is given to Medical Center.
(b) Medical Center attempts to remove, sell, transfer, encumber, sublet or part with possession of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Equipment or any items thereof, except as expressly permitted herein;
(ic) The Company Medical Center shall fail to observe or perform any subsidiary of the other obligations required to be observed or performed by Medical Center hereunder and such failure shall continue uncured for twenty (A20) shall institute any proceeding or voluntary case seeking days after written notice thereof to adjudicate it bankrupt or insolventMedical Center by GKF;
(d) Medical Center ceases doing business as a going concern, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file makes an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action , admits in writing its inability to authorize or effect any of the actions set forth above pay its debts as they become due, files a voluntary petition in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it bankruptcy, is adjudicated a bankrupt or an insolvent, or files a petition seeking dissolution, liquidation, winding up, for itself any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, relief liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of debtorsa petition filed against it in any such proceeding, consents to or seeking the entry of an order for relief or acquiesces in the appointment of a trustee, receiver, trustee, custodian or other similar official for the Company liquidator of it or for of all or any substantial part of its propertyassets or properties, and either such proceeding or it or its shareholders shall not have been dismissed take any action looking to its dissolution or shall not have been stayed for a period of liquidation.
(e) Within sixty (60) days or any of after the actions sought in such proceeding (including, without limitation, the entry commencement of any order for proceedings against Medical Center seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief against under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within thirty (30) days after the appointment without Medical Center's consent or acquiescence of any trustee, receiver or liquidator of it or the appointment of a receiver, trustee, custodian all or other similar official for it or for any substantial part of its property) assets and properties, such appointment shall occur; or
(iii) The Company shall fail to pay not be vacated. Upon the any part occurrence of the Principal when due hereunder;
(b) If an Event of Default described above has occurredDefault, then GKF may at its option do any or all of the Holder may, without further following: (i) by notice to the CompanyMedical Center, declare the principal amount of terminate this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash Agreement as to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or Equipment in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Notedefault, wherever situated, and for such purposes, enter upon the monies adjudicated Site without liability for so doing or decreed GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be payablein default. In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
Appears in 3 contracts
Samples: Lease Agreement (American Shared Hospital Services), Lease Agreement (American Shared Hospital Services), Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurfederal bankruptcy law; or
(iii4) Any representation or warranty made by the Borrower in any Credit Document shall be false or misleading in any material respect on the date as of which made (or deemed made); or
(5) Any default by the Borrower shall occur in the performance or observance of any term, condition, or provision contained in any Credit Document and not referred to in clauses (1) through (4) above, which default shall continue for thirty (30) days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document; or
(7) Default in the payment of principal of or interest on any other obligation of the Borrower for money borrowed (or any obligation under any conditional sale or other title retention agreement or any obligation secured by purchase money mortgage or deed to secure debt or any obligation under notes payable or drafts accepted representing extensions of credit or on any capitalized lease obligation), or default in the performance of any other agreement, term, or condition contained in any contract under which any such obligation is created, guaranteed, or secured if the effect of such default is to cause such obligation to become due prior to its stated maturity; provided that in each and every case noted above the aggregate then outstanding principal balance of the obligation involved (or all such obligations combined) must equal or exceed $100,000; or
(8) Default in the payment of principal of or interest on any obligation of the Borrower for money borrowed from the Lender (other than the Loan) or default in the performance of any other agreement, term, or condition contained in any contract under which any such obligation is created, guaranteed, or secured if the effect of such default is to entitle the Lender to then cause such obligation to become due prior to its stated maturity (the parties intend that a default may constitute an Event of Default under this paragraph (8) even if such default would not constitute an Event of Default under paragraph (7) immediately above); or
(9) The Company shall fail to pay the any part dissolution of the Principal when due hereunder;Borrower; or
(10) Any material adverse change in the Borrower’s financial condition or means or ability to perform under the Credit Documents; or
(11) The occurrence of any other event as a result of which the Lender in good faith believes that the prospect of payment in full of the Loan is impaired.
(b) If Upon the occurrence of an Event of Default described above has occurredDefault, then the Holder mayLender, at its option, without further demand or notice to the Companyof any kind, may declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith Loan immediately due and payable, whereupon such all outstanding principal and all such amounts accrued interest shall become and be forthwith immediately due and payable.
(c) The Company covenants that in case Upon the Principal occurrence of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder an Event of this NoteDefault, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith Lender, without notice or demand of any kind, may from time to pay such amount, the Holder may commence an time take whatever action or proceeding at law or in equity for or under the collection terms of the sums so Credit Documents may appear necessary or desirable to collect the Loan and other amounts payable by the Borrower hereunder then due or thereafter to become due, or to enforce performance and unpaidobservance of any obligation, agreement, or covenant of the Borrower under the Credit Documents.
(d) In the event of a failure of the Borrower to pay any amounts due to the Lender under the Credit Documents within 15 days of the due date thereof, the Lender shall perform its duty under Section 50-23-20 of the Official Code of Georgia Annotated to notify the state treasurer of such failure, and the Lender may prosecute apply any funds allotted to the Borrower that are withheld pursuant to Section 50-23-20 of the Official Code of Georgia Annotated to the payment of the overdue amounts under the Credit Documents.
(e) Upon the occurrence of an Event of Default, the Lender may, in its discretion, by written notice to the Borrower, terminate its remaining commitment (if any) hereunder to make any further advances of the Loan, whereupon any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablecommitment shall terminate immediately.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $250,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Note (Accupoll Holding Corp), Note Agreement (Accupoll Holding Corp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note or the subscription agreement executed by the Company and the Holder as of the date hereof and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $100,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Note (Molecular Diagnostics Inc), Note (Molecular Diagnostics Inc)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):Default under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan (whether principal, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise); or
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its propertythe property of the Borrower, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or the creditors of the Borrower, (D) shall commence a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under the Bankruptcy Code, or (G) take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower, (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower, or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurBankruptcy Code; or
(iii4) Any representation or warranty made by the Borrower in any Credit Document shall be false or misleading in any material respect on the date as of which made (or deemed made); or
(5) Any default by the Borrower shall occur in the performance or observance of any term, condition, or provision contained in any Credit Document and not referred to in clauses (1) through (4) above, which default shall continue for thirty (30) days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document; or
(7) The Company shall fail to pay occurrence of an event of default under the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableLease.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 2 contracts
Samples: Loan Agreement (Inhibitex Inc), Loan Agreement (Inhibitex Inc)
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Borrower fails to pay any amount of principal and interest when due under any Note and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Borrower in this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Borrower (A) fails to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Borrower which is not an individual shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Borrower that is an individual dies or becomes permanently and totally disabled; (vi) Borrower (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and Lender or any affiliate of Lender; (viii) nonpayment by Borrower of any Rate Management Obligation when due or the breach by Borrower of any term, provision, or condition contained in any Rate Management Agreement; (ix) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and any of its other creditors, (x) if Borrower’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (xi) Lender shall have determined, in its sole discretion, that a material adverse change in Borrower’s existing or prospective financial condition, management or results of operations since the date hereof which may affect the ability of Borrower to perform its obligations under the Loan Documents has occurred; or (xii) the owners of the capital stock or other units of ownership on the date of this Agreement entitled to vote for the election of the board of directors of Borrower or other similar governing body cease to own or do not have the unencumbered right to vote in the aggregate at least ninety percent (90%) of such capital stock or other ownership interest of Borrower.
(b) Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrower under this Agreement, any Notes, or any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for reinvestment costs and not as a penalty), and (ii) proceed to exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred and be continuing shall constitute an event exclusive), all of default (“Event of Default”):which are hereby authorized by Borrower:
(i) The Company Borrower shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any all of the actions set forth above in this subsection 4(a)(i)Equipment at a location designated by Lender; and/or to return promptly, at Borrower’s expense, any or all of the Equipment to Lender at such location;
(ii) Any proceeding shall Lender may itself or by its agents enter upon the premises of Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrower any or all of the Equipment, wherever it may be instituted against the Company seeking to adjudicate it a bankrupt or insolventlocated, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an without any court order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orpossession;
(iii) The Company shall fail to pay the Sell, lease or otherwise dispose of any part or all of the Principal when due hereunderEquipment, whether or not in Lender’s possession, at public or private sale with or without notice to Borrower, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Borrower under the Notes and the other Loan Documents, with Borrower remaining liable for any deficiency, or retain any and all of the Equipment;
(biv) If Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrower or to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lender or any affiliate of this Note at the time outstandingLender, and all other amounts payable with respect to which Borrower has an interest, against any obligations of Borrower arising under this Note Agreement, any Notes or any other Loan Document, whether or not Borrower has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lender in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that Borrower shall indemnify, defend and hold Lender harmless for any loss, personal injury (including death), or damage to property, suffered by Lender, its employees or any of its agents in case connection with its entry onto the Principal premises of Borrower or any third party hereunder. Each of the Note becomes due rights and payable by declaration remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or otherwiseany other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, then the Company will pay in cash power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the Holder future exercise of this Noteany such right, the whole amount that then power or remedy. Waiver by Lender of any Event of Default shall have become due and payable on this Note for Principal. In case the Company not be a waiver by Lender of any other or subsequent Events of Default.
(d) Borrower shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or notify Lender in equity for the collection writing of the sums so due and unpaidoccurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may prosecute in any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableevent within ten (10) days thereafter.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Banyan Rail Services Inc.)
Events of Default and Remedies. (a) Any 9.1. The occurrence of any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”)::
(a) cessation of the business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and obligations of the Company;
(b) the failure by the Company or any Guarantor, or the admission by the Company or any Guarantor in writing of its inability, to pay its debts generally as and when they become due;
(i) The commencement of an involuntary case or other proceeding against the Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, Guarantor which seeks liquidation, winding up, reorganization, arrangement, adjustment, protection, reorganization or other relief or composition of with respect to it or its debts or other liabilities under any law relating to bankruptcy, insolvency or reorganization other similar law now or relief of debtors, hereafter in effect or seeking the entry of any order for relief or seeks the appointment of a trustee, receiver, trusteeliquidator, custodian or other similar official for such the Company of it or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such involuntary case or other proceeding shall not have been dismissed remain undismissed or shall not have been stayed unstayed for a period of sixty days (60) days days; or any of the actions sought in such proceeding (including, without limitation, the entry of any an order for relief against it the Company or any Guarantor shall be entered in any such case under the Federal Bankruptcy Code; or (ii) commencement by the Company or any Guarantor of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its Debts or other liabilities under any bankruptcy, insolvency or other similar law or seeking the appointment of or a trustee, receiver, trusteeliquidator, custodian or other similar official for it or for any substantial part of its property, or (iii) consent by the Company or any Guarantor to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or (iv) the making by the Company or any Guarantor of a general assignment for the benefit of creditors, or (v) any action by the Company or any Guarantor to authorize or effect any of the foregoing;
(d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Company and HILCO, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall occurnot be deemed to be an Event of Default unless and until such Default shall remain unremedied to HILCO’s satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company of any warranty, representation or covenant of Section 4.2 hereof (other than the fourth sentence of Section 4.2); Sections 5.3 and 5.4 hereof (other than the first sentence of Section 5.4); Sections 6.1, 6.5, 6.6, and 6.7 through 6.19 hereof;
(f) failure of the Company to make any payment of principal, interest or any other monetary Obligation within two (2) Business Days of the due date thereof;
(g) the Company or any of its ERISA Affiliates shall have made a complete or partial withdrawal from a Multiemployer Plan, and, as a result of such complete or partial withdrawal, the Company or any of its ERISA Affiliates incurs a withdrawal liability in an annual amount exceeding $250,000; or a Multiemployer Plan enters reorganization status under Section 4241 of ERISA, and, as a result thereof the Company or any of its ERISA Affiliates’ annual contribution requirements with respect to such Multiemployer Plan increases in an annual amount exceeding $250,000;
(h) any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been given to the Company by HILCO, (i) such Termination Event (if correctable) shall not have been corrected, and (ii) the then current value of such Employee Plan’s vested benefits exceeds the then current value of assets allocable to such benefits in such Employee Plan by more than $250,000 (or, in the case of a Termination Event involving liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, the liability is in excess of such amount);
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing any Indebtedness of the Company having a principal amount in excess of $250,000 (including the CIT Debt); or
(iiij) The the receipt by HILCO of notice from the issuer of the UM Holdings Letter of Credit that such issuer elects not to renew UM Holdings Letter of Credit for an additional one year period and the failure of UM Holdings, Ltd. or the Company, unless the UM Holdings Letter of Credit has been returned to UM Holdings, Ltd. in accordance with the terms of the CIT Loan Agreement, to replace the UM Holdings Letter of Credit with a replacement letter of credit (in form and substance satisfactory to HILCO and issued by an issuer satisfactory to HILCO) no less than 45 days prior to the expiration of the UM Holdings Letter of Credit.
(k) the attempt to Transfer a Mortgaged Property or any part thereof or interest therein without the prior written consent of HILCO;
(l) the payment by the Company of an amount in excess of $1,000,000 in the aggregate during any Fiscal Year under any Lease Support Guaranty; or
(m) the occurrence of an “Event of Default” under any other Loan Document.
9.2. Without notice, upon the occurrence of an Event of Default other than those contained in Section 9.1(b) or (c), at the option of HILCO: (a) all Obligations shall fail become immediately due and payable in full; (b) HILCO shall be entitled to pay exercise all rights and remedies available to it under this Agreement, the other Loan Documents, at law and in equity. Immediately upon the occurrence of an Event of Default contained in Section 9.1(b) or (c), the Obligations shall automatically become due and payable in full and HILCO shall be entitled to exercise all rights and remedies available to it under this Agreement, the other Loan Documents, at law and in equity.
9.3. Immediately upon the occurrence of an Event of Default, in addition to the other rights and remedies available under this Agreement, the other Loan Documents, at law and in equity, but subject to the rights of CIT as provided in the Intercreditor Agreement, HILCO may, or may cause its designee to: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or use, at the Company’s expense, such of the Company’s personnel, supplies or space at the Company’s places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or HILCO or its designee, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or HILCO or its designee, (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at HILCO’s sole option and discretion, and bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests and liens in the Collateral created herein or by the Loan Documents or take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same. HILCO shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Principal when Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or HILCO or its designee, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as HILCO in its sole discretion may deem advisable, and HILCO or its designee shall have the right to purchase at any such sale by credit bid or otherwise in its sole discretion. If any Inventory, Equipment or Mortgaged Property shall require rebuilding, repairing, maintenance or preparation, HILCO shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the same in such saleable form as HILCO shall deem appropriate. The Company agrees, at the request of HILCO, to assemble the Inventory and Equipment and to make it available to HILCO or its designee at premises of the Company or elsewhere and to make available to HILCO or its designee the premises and facilities of the Company for the purpose of taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from HILCO’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including attorneys’ fees and costs) shall be applied by HILCO to the payment of the Obligations, whether due or to become due, in such order as HILCO may elect, and the Company shall remain liable to HILCO for any deficiency, and HILCO in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby agrees to indemnify, defend and hold harmless HILCO, its co-lenders, participants, agents, equity-holders, officers, directors and representatives (collectively, Indemnified Parties”) from and against any and all costs, expenses (including attorneys’ fees and costs and all cost of enforcement of its rights and remedies, whether in bankruptcy or otherwise), claims and liabilities arising in connection with the exercise of any of such Indemnified Party’s rights, remedies and interests hereunder;
, including, from any sale or transfer of Collateral, preserving, maintaining or securing the Collateral, defending its interests in Collateral (b) If an Event of Default described above has occurred, then the Holder may, without further notice including pursuant to any claims brought by the Company, declare the principal amount of this Note at the time outstandingCompany as debtor-in-possession, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal any secured or unsecured creditors of the Note becomes due and payable by declaration Company, any trustee or receiver in bankruptcy, or otherwise), then the Company will pay in cash to the Holder of this Noteprovided, the whole amount however, that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith not be responsible to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection costs or expenses of any Indemnified Party to the sums so due extent that such costs and unpaidexpenses were caused by the gross negligence or willful misconduct of such Indemnified Party, as determined by the final, non-appealable decision of a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Financing Agreement until such time as all Obligations (including the foregoing) have been finally and indefeasibly paid in full. In furtherance thereof HILCO may prosecute require the Company to establish such reserves for Obligations hereunder (including any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payablecontingent Obligations) as it may deem advisable in its reasonable business judgement.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;, subject to a cure period of ten (10) business days.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for PrincipalNote. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) If any repayment to be made hereunder, whether interest, Principal or both, shall not be paid within thirty (30) days after the same shall be due, then in addition to interest and without limiting the Holder’s rights by reason of such default (an “Event of Default”), there shall be paid as liquidated damages, upon written notice, five (5%) percent of such repayment or installment to cover the extra expense in handling delinquent payments.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company Companies shall fail to perform or observe any subsidiary affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to each of the Companies; or
(iv) The Parent or Acquisition Sub (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, up reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company Parent or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3(iv);; or
(iiv) Any proceeding shall be instituted against the Company Companies seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company Companies or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $200,000 in the aggregate shall fail be rendered against the Companies, and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order, or (B) there shall be any period of thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied; or
(vii) If, prior to pay the any part Payment Date, there is a sale, conveyance or disposition of all or substantially all of the Principal assets of the Parent or the Acquisition Sub, the effectuation by the Parent or the Acquisition Sub of a transaction or series of related transactions in which more than 50% of the voting power of the Parent or Acquisition Sub is disposed of, or the consolidation, merger or other business combination of the Parent or Acquisition Sub with or into any other Person (as defined below) or Persons when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to Parent or Acquisition Sub is not the Company, declare the principal amount of this Note at the time outstandingsurvivor, and in the event of a merger or consolidation or sale of all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and or substantially all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Notetheir assets, the whole amount that then surviving or successor entity in such transaction fails to assume the Parent's and Acquisition Sub's obligations hereunder as well as under a certain Asset Purchase Agreement and other "Parent Documents" as defined therein, all dated the date hereof, between the parties hereto. "PERSON" shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amountmean any individual, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaidcorporation, and may prosecute any such action or proceeding to judgment or final decree against Company limited liability company, partnership, association, trust or other obligor upon this Note, wherever situated, the monies adjudicated entity or decreed to be payable.organization; or
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):" under this Agreement:
(i1) Failure by the Borrower to make any payment with respect to the Loan or under the terms of any Credit Document (whether principal, interest, fees, or other amounts) when and as the same becomes due and payable (whether at maturity, on demand, or otherwise).
(2) The Company or any subsidiary Borrower shall (A) shall institute any proceeding apply for or voluntary case seeking consent to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of or the taking of possession by a receiver, custodian, trustee, custodian or other similar official for such liquidator of the Company Borrower or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it property of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar officialBorrower; (B) shall admit in writing the inability of the Borrower, or be unable generally unable, to pay its the debts of the Borrower as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditorsthe creditors of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against the Borrower in an involuntary case under such federal bankruptcy law; or (DG) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above in this subsection 4(a)(i);foregoing.
(ii3) Any A proceeding or case shall be instituted against commenced, without the Company application of the Borrower, in any court of competent jurisdiction, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, (A) the liquidation, winding up, reorganization, arrangementdissolution, adjustment, protection, relief of debtorswinding-up, or seeking composition or readjustment of debts of the entry of an order for relief or Borrower; (B) the appointment of a trustee, receiver, trusteecustodian, custodian liquidator, or other similar official for the Company like of the Borrower or for of all or any substantial part of its propertythe assets of the Borrower or of the Facilities; or (C) similar relief in respect of the Borrower under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition and adjustment of debts, and either such proceeding or case shall not have been dismissed continue undismissed, or an order, judgment, or decree approving or ordering any of the foregoing shall not have been stayed be entered and continue in effect, for a period of sixty (60) days or any from commencement of the actions sought in such proceeding (includingor case or the date of such order, without limitationjudgment, the entry of or decree, or any order for relief against it the Borrower shall be entered in an involuntary case or proceeding under the federal bankruptcy law.
(4) The Borrower's breach in any material respect of any representation or warranty contained in the Credit Documents or the appointment of a receiverBorrower's failure in any material respect to observe, trusteeperform, custodian or other similar official for it comply with any covenant, condition, or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay agreement in the any Credit Documents on the part of the Principal when Borrower to be observed or performed, other than as referred to in clauses (1) through (3) above, for a period of thirty (30) days after written notice specifying such breach or failure and requesting that it be remedied, given to the Borrower by the Lender, unless the Lender shall agree in writing to an extension of such time prior to its expiration. In the case of any such breach or default that cannot with due hereunder;
diligence be cured within such thirty (b30) If day period but can be wholly cured within a period of time not materially detrimental to the rights of the Lender, to be determined conclusively by the Lender, it shall not constitute an Event of Default described above has occurred, then if corrective action is instituted by the Holder may, without further notice Borrower within the applicable period and diligently pursued until the breach or default is corrected in accordance with and subject to any directions or limitations of time established by the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payableLender.
(c5) The Company covenants that occurrence of an "event of default" under the Guaranty (as defined in case the Principal Guaranty).
(6) Any material provision of any Credit Document shall at any time for any reason cease to be valid and binding in accordance with its terms on the Borrower, or the validity or enforceability thereof shall be contested by the Borrower, or the Borrower shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document.
(7) The dissolution of the Note becomes due and payable by declaration Borrower.
(8) Any material adverse change in the Borrower's means or otherwise, then ability to perform under the Company will pay Credit Documents.
(9) The occurrence of any other event as a result of which the Lender in cash to good faith believes that the Holder prospect of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or payment in equity for the collection full of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableLoan is impaired.
Appears in 1 contract
Samples: Loan Agreement (Dixie Group Inc)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of any Loan Party or the calling of a meeting of the creditors of any Loan Party for purposes of compromising the debts and be continuing shall constitute an event obligations of default such Loan Party;
(“Event b) the failure of Default”):any Loan Party to generally meet its debts as they mature;
(i) The Company or the commencement by any subsidiary (A) shall institute Loan Party of any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it any Loan Party, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of such a Loan Party, which proceeding or case, shall not have been controverted within ten (10) days or shall file an answer not have been dismissed and vacated within thirty (30) days of commencement, except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Loan Party shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by any Loan Party, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against any Loan Party, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, which proceeding shall not have been controverted within ten (10) days and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding (includingshall occur or any Loan Party's subsidiaries, without limitationor any one of them, shall take action to authorize or effect any of the entry of actions in any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occursuch proceeding; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. If any of the following events: ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest on, the Note when the same becomes due and payable; or
(b) Any one representation or more of warranty made by the following events which Borrower under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed and such failure shall remain unremedied for 10 days after written notice thereof shall have occurred and be continuing shall constitute an event of default (“Event of Default”):been given to the Borrower by the Lender; or
(id) The Company Borrower shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any subsidiary (A) proceeding shall institute any proceeding be instituted by or voluntary case against the Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company it or for any substantial part of its propertyinstituted against it (but not instituted by it), and either such proceeding shall not have been dismissed remain undismissed or shall not have been stayed unstayed for a period of sixty (60) days 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of any an order for relief against it against, or the appointment of a receiver, trustee, custodian or other similar official for for, it or for any substantial part of its property) shall occuroccur and shall not be stayed pending timely appeal (provided that the lifting of such stay shall constitute an Event of Default); or the partner shall take any corporate or partnership action to authorize any of the actions set forth above in this subsection (d); or
(iiie) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration Any final judgment or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity order for the collection payment of money in excess of $100,000, or any two or more final judgments or orders for the sums so due payment of money in excess of $250,000 in the aggregate, shall be rendered against the Borrower or any of its subsidiaries and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.same shall not be
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) Default in the payment of the principal or accrued interest on this Note or upon any other indebtedness of the Company after the date hereof that is greater than $100,000, as and when the same shall become due, whether by default or otherwise, which Default shall have continued for a period of five (5) business days; or
(ii) Any representation or warranty made by the Company or any officer of the Company in the Notes, or in any agreement, report, certificate or other document delivered to the Holder pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in Section 4 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5(a)(iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of such entry.
(vii) Delisting of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading; Company's failure to comply with the conditions for listing; or notification that the Company is not in compliance with the conditions for such continued listing.
(viii) The issuance of an SEC stop trade order or an order suspending trading of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading for longer than five (5) trading days.
(ix) The failure by the Company to issue shares of Common Stock to the Holder upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of this Note, or the failure to transfer or cause its transfer agent to transfer (electronically or in certificated form) any certificate for shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, or the failure to remove any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, and any such failure shall continue uncured for ten (10) days after the Company shall have been notified thereof in writing by the Holder;
(x) The failure by the Company to file the Registration Statement on or about February 15, 2005, or obtain effectiveness with the Securities and Exchange Commission of the Registration Statement within 120 days from that date or such Registration Statement lapses in effect (or sales cannot otherwise be made there under effective, whether by reason of the Company's failure to amend or supplement the prospectus included therein) for more than thirty (30) consecutive days after the Registration Statement becomes effective which shall include Common Stock into which this Note may be converted; or
(xi) The Company shall fail encumber or hypothecate the collateral subject to pay the Security Agreement to any part party;
(xii) A default by the Company of a material term, covenant, warranty or undertaking of any other agreement to which the Principal when due hereunder;Company and Holder are parties, or the occurrence of an event of default under any such other agreement; or
(xiii) A default by the Company under its license agreement with Biowell Technology, Inc.
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Holder and the Note shall bear interest until paid at the rate of 12% per annum or such amount as shall be allowed by law (the "Default Interest Rate"). If an Event of Default described above has occurredoccurs and is continuing, then Holder may pursue any available remedy to collect the Holder may, without further notice payment of all amounts due under the Note or to enforce the Company, declare performance of any provision of the principal amount Note. No waiver of this any default under the Note at the time outstandingshall be construed as a waiver of any subsequent default, and all other amounts payable under this Note the failure to be forthwith due and payable, whereupon exercise any right or remedy thereunder shall not waive the right to exercise such principal and all such amounts shall become and be forthwith due and payableright or remedy thereafter.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The Company agrees that it shall give notice to the Holder at its registered address by facsimile, confirmed by certified mail, of the occurrence of any Event of Default within ten (10) days after such Event of Default shall have occurred.
Appears in 1 contract
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company; or
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature; or
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding (including, without limitation, the entry of any order for relief against it shall occur or the appointment Company's subsidiaries, or any one of a receiverthem, trustee, custodian shall take action to authorize or other similar official for it or for effect any substantial part of its property) shall occurthe actions in any such proceeding; or
(iiid) The breach by the Company shall fail of any warranty, representation or covenant contained herein (other than those referred to pay in sub-paragraph (e) below) or in any other written agreement between the Company or CIT, provided that such Default by the Company of any part of the Principal when due hereunder;
warranties, representations or covenants referred in this clause (bd) If shall not be deemed to be an Event of Default described above has occurredunless and until such Default shall remain unremedied to CIT's satisfaction for a period of ten (10) days from the date of such breach; or
(e) breach by the Company of any warranty, then representation or covenant of Paragraphs 3.3 (other than the Holder mayfourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, without further notice 7.5, 7.6, and 7.8 through 7.13 hereof; or
(f) failure of the Company to pay any of the Obligations on the due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Company, declare Revolving Loan Account on the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.date thereof; or
(cg) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to pay this sub-paragraph (h) such amountevent or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the Holder may commence an action reasonable opinion of CIT, subject the Company to any tax, penalty or proceeding at law other liability material to the business, operations or in equity for the collection financial condition of the sums so due and unpaid, and may prosecute Company; or
(h) the occurrence of any such action default or proceeding event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement for Indebtedness of the Company having a principal amount in excess of $250,000; or
(i) any judgment or final decree judgments aggregating in excess of $100,000.00 or any injunction or attachment is obtained or enforced against Company and which remains unstayed for more than ten (10) Business Days; or
(j) If Jennxxxx Xxxx xxxses for any reason whatsoever (other than as a result of death or other obligor upon this Notedismissal for fraud, wherever situateddefalcation, embezzlement or the monies adjudicated or decreed like) to be payableactively engaged as Vice President-Finance and Chief Financial Officer in the management of the Company and an acceptable replacement is not employed within 180 days of the cessation of employment of Jennxxxx Xxxx, xx if Tod X. Xxxxxxxx xxxses for any reason whatsoever (other than as a result of death or dismissal for fraud, defalcation, embezzlement or the like) to be actively engaged as Chairman of the Board or Chief Executive Officer in the management of the Company and an acceptable replacement is not employed within 180 days of the cessation of employment of Tod X. Xxxxxxxx.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note or the subscription agreement executed by the Company and the Holder as of the date hereof and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $100,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied; or
(b) If an Event of Default described above has occurred, then the Holder may, may either
(i) without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable; or
(ii) in the case of an event of default described in Section 4(a)(i) or (ii) hereof which continues for at least three business days, elect to convert all of the principal and interest owing on this Note into shares of the Company's common stock, subject to the restrictions contained herein. The conversion price per share shall be fifty percent (50%) of the average of the three lowest closing prices for the Common Stock on the NASD OTC Bulletin Board (or such other principal market or exchange where the Common Stock is listed or traded at the time of conversion) for the ten days immediately preceding the Maturity Date. Such election to convert shall be evidenced by completion of the conversion notice attached hereto and delivery of such notice to the Company within five business days of (i) the Holder's receipt of a notice from the Company pursuant to Section 2 that a prepayment is due, or (ii) the Maturity Date. The Holder's right to convert the obligations due under this Note to common stock shall supercede the Company's right to repay such obligations in cash, subject to the restrictions contained herein.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash cash, or in Common Stock of the Company if required under this Agreement, to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel if no conversion of the Note to Common Stock of the Company has been made. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company;
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and the proceeding dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall to the extent it may reasonably be instituted against expected to result in a material change in the Company seeking to adjudicate it a bankrupt or insolventfinancial condition of the Company, the commencement (x) by the Company's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within fifteen (15) days and dismissed or shall not have been stayed for a period of sixty vacated within forty-five (6045) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(includingd) breach by the Company, in any material respect, of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph [e] below) or in any other 41 42 written agreement between the Company or CIT, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT's reasonable satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company, in any material respect, of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and Paragraph 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could reasonably be expected, in the opinion of CIT, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) without limitationthe prior written consent of CIT and, except as permitted in the Subordination Agreement, the entry of any order for relief against it Company shall amend or modify the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occurSubordination Debt; or
(iiii) The Company shall fail the occurrence of any default or event of default (after giving effect to pay the any part applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Principal when Company having a principal amount in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in CIT's sole discretion and the obligation of CIT to make Revolving Loans, shall cease unless such Default is cured to CIT reasonable satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default:
(a) all Obligations shall become immediately due hereunder;
and payable; (b) If an CIT may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause "(b)" CIT has given the Company written notice of the Event of Default; provided, however, that no notice is required if the Event of Default described above has occurred, then is the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that Event listed in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.Paragraph 10.1
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):":
(a) Maker shall fail to pay the amount due under this Note on or preceding the Maturity Date;
(b) Maker shall fail to perform, observe and comply with any covenant, agreement, or condition (other than the covenant to pay amounts of principal or interest thereon due under this Note) contained in this Note and such failure continues for a period of ten (10) days following written notice to Maker from Holder of the continuation of such failure; or
(c) Maker (i) The Company shall generally not, or any subsidiary be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; (Aii) shall institute make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for itself or a substantial part of its assets; (iii) shall commence any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding upunder any bankruptcy, reorganization, arrangementarrangement or readjustment of debt law or statute of any jurisdiction, adjustmentwhether now or hereafter in effect; (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, protectionagainst it, in which an adjudication or appointment is made or order for relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsis entered, or seeking which petition, application or proceeding remains undismissed or unstayed for a period of thirty (30) days or more; (v) or shall be the entry subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture; (vi) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a receivercustodian, trustee, custodian receiver or other similar official trustee for such the Company all or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (Dvii) shall take suffer any action such custodianship, receivership or trusteeship to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed continue undischarged for a period of sixty thirty (6030) days or more.
(d) Any warranty, representation or other statement by or on behalf of Maker contained in the Letter Agreement or in any of the actions sought instrument furnished in such proceeding compliance with or in reference thereto shall have been false or misleading in any material respect when made.
(including, without limitation, the entry e) Maker shall have defaulted with respect to any payment obligation in respect of any order for relief against it indebtedness of Maker (other than trade payables) or under any agreement securing or relating to such indebtedness, or any event shall occur and be continuing or any condition shall exist in respect of any indebtedness (other than trade payables), or under any agreement securing or relating to such indebtedness, that causes such indebtedness, or a portion thereof, to become due prior to its stated maturity or prior to its regularly scheduled date or dates of payment (and the appointment holder of a receiver, trustee, custodian or other similar official for it or for any substantial part such indebtedness has caused such to become due). Upon the occurrence of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredin paragraph (c) of Section 3 hereof, then the Holder may, without further notice to the Company, declare the outstanding principal amount of this Note at shall automatically become immediately due and payable. Upon the time outstandingexistence of an Event of Default (other than pursuant to paragraph (c) of Section 3 hereof), and all other amounts payable under this Note Holder may declare the outstanding principal amount of the Note, to be forthwith due and payable, whereupon such . Upon the outstanding principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder amount of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.becoming due
Appears in 1 contract
Samples: Senior Note (N2k Inc)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):
"): (i). Default in the payment of interest upon this Note, as and when the same shall become due; or (ii). Default in the payment of the principal of this Note, as and when the same shall become due; or (iii). Default in the payment of any other obligation of the Company in an amount in excess of $100,000; or (iv). The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or (v), The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);
; or (iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
or (iii) The Company vi). One or more final judgments or orders for the payment of money in excess of $100,000 in the aggregate shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to be rendered against the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
either (cA) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then enforcement proceedings shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute been commenced by any creditor upon any such action or proceeding to judgment or final decree against Company order, or other obligor upon this Note(B) there shall be any period of thirty (30) days during which enforcement of any such judgment or order shall not be discharged, wherever situated, the monies adjudicated stayed or decreed to be payablefully satisfied.
Appears in 1 contract
Samples: Note (Ventures National Inc)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) The Failure to make any payment hereunder when due or interest thereon within five days of the date when due; or
(ii) Any representation or warranty made by the Company or any subsidiary officer of the Company in the Securities Purchase Agreement, this Note, the Security Instruments, or in any agreement, report, certificate or other document delivered to the Holder pursuant to the Loan Documents shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given to the Company; or
(iii) The Company shall fail to perform or observe any covenant contained in the Securities Purchase Agreement or any other Loan Document and such default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given to the Company; or
(iv) The Company (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth fort above in this subsection 4(a)(i);subsection; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The occurrence of any event of default or other event triggering acceleration of any indebtedness by the Company under any note, agreement or other instrument involving the issuance of indebtedness (but not including any trade payables incurred in the ordinary course of business), whether such indebtedness now exists or may hereafter be created, if, as a result of such event of default or other event, the maturity of such indebtedness has been accelerated or has otherwise become or been declared to be due prior to its stated maturity and the principal amount of such indebtedness which has been accelerated or has otherwise become or been declared to be due exceeds, individually or in the aggregate, One Hundred Thousand Dollars ($100,000); or
(vii) The making or filing of any money judgment, writ or similar process in excess of One Hundred Thousand Dollars ($100,000) against the Company or any of the property or other assets of the Company which shall remain unsatisfied, unvacated, unhanded or unstayed until the date that is the earlier to occur of thirty (30) days after such judgment, writ or similar process is entered and five (5) days prior to the date of any proposed sale thereunder; or
(viii) The levying of any writ of attachment against any property or other assets of the Company not fully covered by insurance in force valued individually or in the aggregate at an amount equal to or greater than One Hundred Thousand Dollars ($100,000) unless the Company posts a bond or obtains other relief for the release of such attachment within thirty (30) days; or
(ix) The suspension of the usual business activities of the Company or the winding up or the complete or partial liquidation of the Company’s business; or
(x) The Company shall fail challenge, or institute or join in any proceedings to pay challenge the validity, binding effect or enforceability of this Note or any part endorsement of this Note or any other obligation to Holder; or
(xi) The Security Agreement or any provision thereof shall cease to be in full force or effect or shall be declared to be null or void or otherwise unenforceable in whole or in part; or Holder shall not have or shall cease to have a valid and perfected security interest in the collateral described in the Security Agreement; or
(xii) The removal of the Principal when due hereunder;Lead Lender Director for any reason without the approval of St. Cloud.
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Holder and the Note shall bear interest until paid at the rate of 15% per annum (the “Default Interest Rate”). If an Event of Default described above has occurredoccurs and is continuing, then Holder may pursue any remedy available at law or in equity or provided for in any Loan Document to collect the payment of all amounts due under the Note or to enforce the performance of any provision of the Note, and all expenses incurred by Holder may, without further notice to in connection with any remedy shall be deemed indebtedness of the Company. For the avoidance of doubt, declare the occurrence of an Event of Default as set forth in Section 6(a)(iv) and Section 6(a)(v) above shall make all sums of principal amount of this Note at the time outstanding, and interest then remaining unpaid and all other amounts payable under this Note to be forthwith hereon due and payable, whereupon all without demand, presentment, notice or protest, all of which hereby are expressly waived, and will permit Holder to exercise any other right available to it at law or in equity, all which rights and powers may be exercised cumulatively. No delay or failure of Holder in the exercise of any right or remedy provided for under this Note or under any of the Loan Documents shall be deemed a waiver of such principal right by Holder. No exercise or partial exercise or waiver of any right or remedy shall be deemed a waiver of any further exercise of such right or remedy or of any other right or remedy that Holder may have under this Note or under any of the Loan Documents. Enforcement of any of Holder’s rights as to any security for the Promissory Note shall not affect Holder’s right to enforce payment of the Promissory Note and all such amounts shall become to recover judgment for any portion thereof remaining unpaid. The rights and be forthwith due remedies set forth in this Note and payablein any of the Loan Documents are cumulative and not exclusive of any other right or remedy that Holder may have.
(c) The Company covenants that In no event shall Holder be entitled to interest exceeding the maximum rate permitted by law or under the applicable regulations promulgated by the United States Small Business Administration (the “SBA”). If any excess interest is provided for or shall be adjudicated to be so provided for in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on or if any payment or other consideration under this Note for Principal. In case or the Securities Purchase Agreement is determined by the SBA to exceed the amount permitted under applicable regulations promulgated by the SBA, then in such event: (i) the provisions of this paragraph shall govern and control; (ii) the Company shall fail forthwith not be obligated to pay the amount of such amount, interest or other payment or consideration to the Holder may commence an action or proceeding at law or extent that it is in equity for the collection excess of the sums so due and unpaidmaximum amount permitted by law, and may prosecute the same shall be construed as a mutual mistake of the parties; and (iii) any such action excess which may have been collected or proceeding attributed shall, at the option of Holder, be subtracted from the then unpaid principal amount hereof or refunded to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCompany.
Appears in 1 contract
Samples: Note and Common Stock Agreement (St Cloud Capital Partners Lp)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) Default in the payment of the principal or accrued interest on this Note or upon any other indebtedness of the Company after the date hereof that is greater than $100,000, as and when the same shall become due, whether by default or otherwise, which Default shall have continued for a period of five (5) business days; or
(ii) Any knowing representation or warranty made by the Company or any officer of the Company in the Note, or in any agreement, report, certificate or other document delivered to the Seller pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given by the Seller; or
(iii) The Company shall fail to perform or observe any material affirmative covenant contained in Section 4 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied thirty (30) days after written notice thereof shall have been given by the Seller; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its material debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its material debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5(a)(iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of such entry.
(vii) The issuance of an SEC stop trade order or an order suspending trading of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading for longer than fifteen (15) trading days.
(viii) The Company shall fail encumber or hypothecate the collateral subject to pay the Security Agreement to any part party;
(ix) A default by the Company of a material term, covenant, warranty or undertaking of any other agreement to which the Principal when due hereunder;Company and Seller are parties, or the occurrence of an event of default under any such other agreement; or
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Seller and the Note shall bear interest until paid at the rate of 12% per annum or such amount as shall be allowed by law (the “Default Interest Rate”). If an Event of Default described above has occurredoccurs and is continuing, then Seller may pursue any available remedy to collect the Holder may, without further notice payment of all amounts due under the Note or to enforce the Company, declare performance of any provision of the principal amount Note. No waiver of this any default under the Note at the time outstandingshall be construed as a waiver of any subsequent default, and all other amounts payable under this Note the failure to be forthwith due and payable, whereupon exercise any right or remedy thereunder shall not waive the right to exercise such principal and all such amounts shall become and be forthwith due and payableright or remedy thereafter.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder Seller of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees of the Seller's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder Seller may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The Company agrees that it shall give notice to the Seller at its registered address by facsimile, confirmed by certified mail, of the occurrence of any Event of Default within twenty (20) days after such Event of Default shall have occurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pacificap Entertainment Holdings Inc)
Events of Default and Remedies. 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) Any one or more cessation of the following events which shall have occurred business of the Borrower or the calling of a meeting of the creditors of the Borrower for purposes of compromising the debts and be continuing shall constitute an event obligations of default (“Event of Default”):the Borrower;
(ib) The Company the Borrower shall generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or the Borrower shall commence any subsidiary (A) shall institute any case, proceeding or voluntary case other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protectionliquidation, relief dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or insolvency, reorganization or relief of debtors, debtors or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property or shall file an answer or other pleading in any such case, proceeding or other action admitting the material allegations of any petition, complaint or similar pleading filed;
(c) any involuntary case, proceeding or other action against the Borrower shall be commenced seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (i) results in the entry of any order for relief against it or (ii) shall occur; or
remain undismissed for a period of sixty (iii60) The Company shall fail to pay the any part of the Principal when due hereunderdays;
(bd) If an Event of Default described above has occurred, then the Holder mayany representation or warranty contained herein shall prove to have been false in any material respect when made (other than those referred to in sub-paragraph (f) below) or in any other written agreement including, without further notice to the Companylimitation, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.Loan
Appears in 1 contract
Samples: Financing and Security Agreement (Devlieg Bullard Inc)
Events of Default and Remedies. (a) Any one or more 1. Notwithstanding anything hereinabove to the contrary, the Lenders may terminate this Financing Agreement immediately upon the occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (“Event herein "Events of Default”"):
(i) The Company or any subsidiary (A) cessation of the business of the Borrower or the calling of a meeting of the creditors of the Borrower for purposes of compromising the debts and obligations of the Borrower;
(B) the Borrower shall institute generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or the Borrower shall commence any case, proceeding or voluntary case other action seeking to have an order for relief entered on its behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protectionliquidation, relief dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or insolvency, reorganization or relief of debtors, debtors or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property or shall file an answer or other pleading in any such case, proceeding or other action admitting the material allegations of any petition, complaint or similar pleading filed;
(C) any involuntary case, proceeding or other action against the Borrower shall be commenced seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (i) results in the entry of any order for relief against it or (ii) shall occurremain undismissed for a period of sixty (60) days;
(D) any representation or warranty contained herein shall prove to have been false in any material respect when made (other than those referred to in sub-paragraph (f) below) or in any other written agreement including, without limitation, any Loan Document or any document delivered by the Borrower to Lenders Agent or any Lender in connection herewith or therewith or the transactions contemplated hereby or thereby;
(E) breach by the Borrower of any covenant in this Financing Agreement (other than those referred to in sub-paragraph (f) below) or in any other written agreement between the Borrower and the Lenders or Lenders Agent including, without limitation, any Loan Document, or any other document delivered by the Borrower to the Lenders or Lenders Agent in connection herewith or therewith or the transactions contemplated hereby or thereby, if such breach shall not have been remedied within thirty (30) days after such breach;
(F) breach by the Borrower of any warranty, representation or covenant of Section 3, paragraphs 3 (other than the third sentence of paragraph 3); Section 6, Paragraphs 3 or 4; Section 8, Paragraphs 1, 5(a) or (b), 6, or 9 through 16;
(G) failure of the Borrower to pay when due i) any of the principal of the Revolving Credit Loans or Term Loans, or ii) to pay any of the interest on the Revolving Credit Loans or any of the Term Loans within five (5) business days of the due date thereof or (iii) to reimburse CITBC on any Letter of Credit Guaranty when requested by CITBC; provided, however, that nothing contained herein shall prohibit Lenders Agent from charging such amounts to the Borrower's account on the due date thereof;
(i) a default by the Borrower shall have occurred and be continuing in any payment of principal of or interest on any other obligation for borrowed money (or any obligation or obligations under a conditional sale or other title retention agreement or any obligation or obligations issued or assumed as full or partial payment for property whether or not secured by a purchase money mortgage or any obligation under notes payable or drafts accepted representing extensions of credit) beyond any period of grace provided with respect thereto in each case involving any individual obligation or one or more obligations in an aggregate principal amount of $250,000 or more or (ii) a default by the Borrower shall have occurred and be continuing in the performance of any other agreement, term or condition contained in any agreement under which any such obligation referred to in clause (i) is created (or if any other default under any such agreement shall occur and be continuing) if the effect of such default is to cause, or permit the holder or holders of such obligation or obligations (or a trustee on behalf of such holder or holders) to cause, such obligation or obligations to become due prior to its or their stated maturity in each case involving any individual obligation or one or more obligations in an aggregate principal amount of $250,000 or more;
(I) The Borrower or any other person engages in a transaction in connection with which the Borrower or any entity which the Borrower has an obligation to indemnify, could be subject to liability for either a civil penalty assessed pursuant to section 502 of ERISA or a tax imposed by section 4975 of the Code; an accumulated funding deficiency (as defined in section 302 of ERISA or section 412 of the Code), whether or not waived, exists with respect to any Pension Plan; a lien arises or security interest is granted with respect to any Pension Plan; a Pension Plan is terminated; a Reportable Event occurs or proceedings commence to terminate or to have a trustee appointed to terminate any Pension Plan which Reportable Event or commencement of proceedings or appointment is, in the reasonable opinion of the Required Lenders, likely to result in the termination of any such Pension Plan; the Borrower or any ERISA Affiliate incurs or is likely to incur any liability in connection with a withdrawal from or the Insolvency, Reorganization or termination of a Multiemployer Plan or with respect to section 515 of ERISA; or any other similar event or condition shall occur or exist with respect to any Employee Benefit Plan;
(J) without the prior written consent of all the Lenders, the Borrower shall x) amend or modify the Subordinated Debt or y) make any payment on account of the Subordinated Debt except as permitted herein;
(K) if the Borrower fails to cause the County, promptly after the Second Closing Date, to convey directly to the Borrower the fee interest in the Fremont Property, as hereinafter defined;
(L) if the Borrower fails to perform any one or more of the following actions, simultaneously with the transfer of the Fremont Property, as hereinafter defined, from the County of Sandusky, Ohio to the Borrower:
(I) execute, deliver and cause to be filed in the appropriate recorder's office a confirmatory spreader agreement as contemplated by Section 1.10(c) of that certain leasehold mortgage between the Borrower and CITBC dated as of the date hereof with respect to the real property located in Fremont, Ohio (the "Fremont Property"); or
(II) deliver to Lenders Agent an ALTA Lender's Fee Title Policy 1992 containing exceptions and requirements satisfactory to Required Lenders in their sole discretion; or
(III) deliver to Lenders Agent an opinion from Ohio counsel, in the form previously approved by the Required Lenders, opining that the confirmatory spreader agreement referenced in clause (i) above has been duly authorized, executed and delivered and that such confirmatory spreader agreement is enforceable in accordance with its terms.
2. Upon the occurrence and continuation of a Default and/or an Event of Default, at the option of the Lenders, all loans and advances provided for in Section 3, paragraph 1 of this Financing Agreement shall be thereafter in the Lender's sole discretion and the obligation of the Lenders or CITBC, as the case may be, to make Revolving Loans and/or assist in opening Letters of Credit shall cease, and at the option of the Required Lenders upon the occurrence and continuation of an Event of Default: i) all Obligations shall become immediately due and payable; provided, however, that Lenders Agent has given the Borrower written notice of the Event of Default; provided, further, however, that no notice is required if the Event of Default is an Event of Default listed in paragraph 1(b) or 1(c) of this Section 11; ii) the Lenders may charge the Borrower the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 9, paragraphs 1, 2, 3 and 4 of this Financing Agreement; and iii) the Lenders may immediately terminate this Financing Agreement upon notice to the Borrower; provided, however, that no notice of termination is required if the Event of Default is the Event listed in paragraph 1(b) or 1(c) of this Section 11. The Company exercise of any option is not exclusive of any other option which may be exercised at any time by the Lenders.
3. Immediately upon the occurrence of any Event of Default and as long as such Event of Default is continuing, Lenders Agent may to the extent permitted by law: (a) remove from any premises where same may be located any and all documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or Lenders Agent may use, at the Borrower's expense, such of the Borrower's personnel, supplies or space at the Borrower's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Borrower or Lenders Agent, and generally shall fail have all other rights respecting said Accounts, including, without limitation, the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Borrower or Lenders Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed merchandise, with or without advertisement to pay the extent permitted by applicable law, at public or private sale, for cash, on credit or otherwise, at Lenders Agent's sole option and discretion, and Lenders Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Borrower to the extent permitted by law; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory and Equipment without judicial process, and to enter any premises where any Inventory and Equipment may be located for the purpose of taking possession of or removing the same and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. Lenders Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Principal when due hereunder;
Collateral whether in its then condition or after further preparation or processing, in the name of the Borrower or Lenders Agent, or in the name of such other party as Lenders Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as Lenders Agent in its sole discretion may deem advisable, and Lenders Agent and the Lenders shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, Lenders Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as Lenders Agent shall deem appropriate. The Borrower agrees, at the request of Lenders Agent, to assemble the Inventory and Equipment and to make it available to Lenders Agent at premises of the Borrower or elsewhere and to make available to Lenders Agent the premises and facilities of the Borrower for the purpose of Lenders Agent's taking possession of, removing or putting the Inventory and Equipment in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (b10) If an Event days' notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from Lenders Agent's exercise of Default described above has occurredany of the foregoing rights, then the Holder may(after 95 deducting all charges, without further notice costs and expenses, including reasonable attorneys' fees) shall be applied by Lenders Agent to the Companypayment of the Obligations, declare the principal amount of this Note at the time outstandingwhether due or to become due, in such order as Lenders Agent may elect, and all other amounts payable under this Note the Borrower shall remain liable to Lenders Agent for any deficiencies, and Lenders Agent in turn agrees to remit to the Borrower or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be forthwith due exhaustive and payablethe exercise of any right shall not preclude the exercise of any other rights, whereupon such principal all of which shall be cumulative. The Mortgages shall govern the rights and all such amounts shall become and be forthwith due and payableremedies of Lenders Agent thereto.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Financing and Security Agreement (Devlieg Bullard Inc)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing shall constitute an event of default (“Event an "EVENT OF DEFAULT") under this Note:
(a) Obligor shall have defaulted in the payment of Default”):all or any part of the principal or interest due under or pursuant to this Note as and when the same shall become due and payable, and such default shall have continued for ten (10) days after Obligor and Parent (if there be one) shall have received from Holder written notice of such default and demand for its cure;
(b) Obligor, pursuant to or within the meaning of Title 11, U.S. Code or any similar federal or state law for the relief of debtors (collectively, "BANKRUPTCY LAW") shall have (i) The Company or any subsidiary (A) shall institute any proceeding or commenced a voluntary case seeking or proceeding, (ii) consented to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any an order for relief against it in an involuntary case or proceeding, (iii) consented to the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary of it or for any substantial part all or substantially all of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (Biv) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make made a general assignment for the benefit of creditors; its creditors or (Dv) shall take any action admitted in writing its inability generally to authorize or effect any of pay its debts as the actions set forth above in this subsection 4(a)(i)same become due;
(c) a court of competent jurisdiction shall have entered an order or decree under any Bankruptcy Law that: (i) is for relief against Obligor in an involuntary case, (ii) Any proceeding shall be instituted against the Company seeking to adjudicate it appoints a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief custodian of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company Obligor or for any substantial part all or substantially all of its propertythe property of Obligor or (iii) orders the liquidation of Obligor, and either in any such proceeding case such order or decree shall not have been withdrawn, dismissed or stayed for sixty (60) days;
(d) Holder's employment under his Employment Agreement, dated as of even date herewith, with Obligor shall have been terminated by Obligor other than (i) for "Cause" or (ii) on account of a "Disability" (as those terms are used in such Employment Agreement) and Obligor shall not elect to reinstate Holder as an employee and President of Obligor as provided for in Section 14.5 of such Employment Agreement;
(e) Holder's employment under the aforesaid Employment Agreement shall have been terminated by Holder for "Good Reason" (as that term is used in such Employment Agreement) and either (i) the events, conditions or circumstances that gave rise to such termination are not cured within the period provided for in Section 14.5 of such Employment Agreement or (ii) Obligor shall not elect to reinstate Holder as an employee and President of Obligor as provided for in Section 14.5 of such Employment Agreement; and
(f) Obligor shall have defaulted with respect to any indebtedness in an amount in excess of one million dollars ($1,000,000), which default has resulted in the acceleration of such indebtedness, and such indebtedness shall not have been stayed for a period of sixty paid, or such acceleration rescinded, within forty-five (6045) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) days. If an Event of Default described above has occurredshall have occurred and be continuing, then Holder, by notice in writing to Obligor (the Holder may"ACCELERATION NOTICE"), without further notice to the Company, may declare the principal amount of this Note at the time outstandinghereunder and all accrued and unpaid interest hereon to be due and payable immediately, and all other amounts payable under this Note to be forthwith upon any such declaration the same shall become immediately due and payable; provided, whereupon such however, that, if an Event of Default specified in Section 2(b) or 2(c) above shall have occurred, the principal hereunder and all such amounts accrued and unpaid interest hereon shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes immediately due and payable by without any declaration or otherwiseother act on the part of Holder. If any Event of Default shall have occurred, then the Company will pay Obligor shall reimburse Holder, on demand, for any and all reasonable costs and expenses, including reasonable attorneys' fees and court costs, incurred by Holder in cash to the Holder of collecting or otherwise enforcing this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Note (National Auto Credit Inc /De)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) The Company One or more final judgments or orders for the payment of money in excess of $100,000 in the aggregate shall fail to pay be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any part creditor upon any such judgment or order, or (B) there shall be any period of the Principal when due hereunder;thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal principal, interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Note Agreement (B&D Food Corp.)
Events of Default and Remedies. Section 7.01. Events of Default.
(a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (An “Event of Default”):
” with respect to a specific issue of Debt Securities shall consist of continues unremedied for 30 days; (iii) The Company any failure by Xxxxxxx Mac to perform in any material respect any other covenant or any subsidiary agreement in this Agreement, which failure continues unremedied for 60 days after the giving of notice of such failure to Xxxxxxx Mac by the Holders of not less than 25% of the outstanding principal amount (Aor notional principal amount) of such Debt Securities; (iii) a court having jurisdiction in the premises shall institute any proceeding enter a decree or voluntary order for relief in respect of Xxxxxxx Mac in an involuntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to applicable bankruptcy, insolvency or reorganization other similar law now or relief of debtorshereafter in effect, or seeking appoint a receiver, liquidator, assignee, custodian, or sequestrator (or other similar official) of Xxxxxxx Mac or for all or substantially all of its property, or order the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (iv) Xxxxxxx Mac shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of any an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian custodian, or sequestrator (or other similar official for such the Company official) of Xxxxxxx Mac or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in make any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the shall fail generally to pay its debts as they become due. The appointment of a receiver, trustee, custodian conservator (or other similar official for the Company official) by a regulator having jurisdiction over Xxxxxxx Mac, whether or for any substantial part of its propertynot Xxxxxxx Mac consents to such appointment, and either such proceeding shall will not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If constitute an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that Default. Any payment made in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law U.S. dollars or in equity for the collection euro as provided under Section 2.03(c)(ii) shall not constitute an Event of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableDefault.
Appears in 1 contract
Samples: Global Debt Facility Agreement
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (An “Event of Default”):” shall be deemed to have occurred under this Note if:
(i) The Company failure of Maker to make any payment when the same becomes due and payable in cash; or
(ii) Maker shall default in the due performance or observance of any subsidiary other term, covenant or agreement on its part contained in this Note and such default shall continue unremedied for fifteen (A15) days from receipt by Maker of written notice thereof from Holder; or
(iii) Maker shall institute any proceeding (i) apply for or voluntary case seeking consent to adjudicate it bankrupt or insolventthe appointment of, or seeking dissolutionthe taking of possession by, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trusteecustodian, custodian trustee or other similar official for such the Company liquidator of itself or any subsidiary of all or for any a substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (Bii) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of its creditors; , (iii) commence a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (v) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or (Dvi) shall take any action to authorize or effect for the purpose of effecting any of the actions set forth above foregoing; or
(iv) a proceeding or case shall be commenced against Maker (other than by Holder), without its application or consent, in this subsection 4(a)(i);
any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) Any proceeding shall be instituted against the Company seeking to adjudicate it appointment of a bankrupt trustee, receiver, custodian, liquidator or insolventthe like of all or any substantial part of its assets, or seeking dissolution(iii) similar relief under any law relating to bankruptcy, liquidation, winding upinsolvency, reorganization, arrangement, adjustment, protection, relief of debtorswinding-up, or seeking composition or adjustment of debts, and in each case such proceeding or case shall continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of 60 or more days; or an order for relief against such Person shall be entered in an involuntary case under the Bankruptcy Code; or
(v) a default or event of default (howsoever defined or denominated) shall occur under the Senior Loan Documents; or
(vi) there shall occur a sale of all or substantially all of the assets of Maker or Maker shall cease to be a wholly owned subsidiary of Parent. If any Event of Default occurs and is continuing, Holder may: (i) declare the Total Amount to be immediately due and payable; (ii) exercise all rights and remedies available to Holder under this Note, under applicable law or at equity; and (iii) exercise from time to time any default rights and remedies available to it under the Uniform Commercial Code and any other applicable law in addition to, and not in lieu of, any rights and remedies expressly granted in this Agreement; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief or with respect to Maker under the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitationBankruptcy Code, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) unpaid Total Amount shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have automatically become due and payable without further act of Holder. The failure of Holder at any time to exercise the foregoing rights shall not be deemed a waiver thereof. All of Holder’s rights and remedies shall be cumulative and non-exclusive to the extent permitted by applicable law. At any sale of the Collateral, if permitted by applicable law, Holder may be the purchaser of the Collateral or any part thereof and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at such sale, to use and apply any of the Obligations as a credit on this Note for Principalaccount of the purchase price of the Collateral or any part thereof payable at such sale. In case Without limiting the Company shall fail forthwith foregoing remedies, subject to pay such amountthe Subordination Agreement, the Holder may commence an action or proceeding at law or in equity for the collection portion of the sums so Principal Amount not paid on or before the date when due and unpaidhereunder and, and may prosecute any such action to the extent permitted by law, accrued interest not paid or proceeding to judgment or final decree against Company or other obligor upon this Notebefore the date when due hereunder, wherever situated, shall bear interest at a fixed rate of two percent (2.00%) per annum in excess of the monies adjudicated or decreed to otherwise applicable rate until the same shall be payablepaid (the “Default Rate”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Stanley Furniture Co Inc.)
Events of Default and Remedies. 10.1. Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company;
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company's Subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's Subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding (including, without limitation, the entry of any order for relief against it shall occur or the appointment Company's Subsidiaries, or any one of a receiverthem, trustee, custodian shall take action to authorize or other similar official for it or for effect any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunderactions in any such proceeding;
(bd) If breach by the Company in any material respect of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other Loan Documents or the Factoring Agreement, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent's satisfaction for a period of ten (10) days from the date of such breach;
(e) breach by the Company in any material respect of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof and Paragraphs 4, 5, 6, 7, and 10 of the Security Agreement-Accounts, Inventory, General Intangibles, Equipment and Other Collateral;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing any Indebtedness of the Company having a principal amount in excess of $250,000;
(i) Xxxxxxxxx Xxxxx ceases for any reason whatsoever (other than as described above in clause (iii)) to be actively engaged in the management of the Company or (ii) either Xxxxxxxx XxXxxxx for any reason whatsoever or Xxxxxxxxx Xxxxx due to her permanent disability, ceases to be actively engaged in the management of the Company unless provided no other Event of Default is existing, a suitable replacement acceptable to Agent is in place not later than 120 days after such disability or departure (provided, however, in the event there is an existing Event of Default at the time of such disability or departure, a suitable replacement satisfactory to Agent shall be in place not later than 60 days after such disability or departure) or (iii) in the case of the death of Xxxxxxxxx Xxxxx, the Agent has occurredobtained the JC Life Insurance Assignment.
(ii) the stock of the Company presently held (directly or indirectly) by Xxxxxxxxx Xxxxx is transferred, then provided that so long as an Event of Default has not occurred and is continuing, Xxxxxxxxx Xxxxx may transfer stock (a) to any trust for the Holder maybenefit of her children and/grandchildren for estate planning purposes, without further notice (b) so long as after giving effect to any such transfer, (i) Xxxxxxxxx Xxxxx and any trust for the benefit of her children and/or grandchildren collectively hold more than 40% of the issued and outstanding shares of the Company, (ii) Xxxxxxxxx Xxxxx and any trust for the benefit of her children and/or grandchildren collectively are the largest shareholder of the Company and (iii) Xxxxxxxxx Xxxxx remains a director of the Company or (c) to her estate upon her death so long as the Agent has obtained the JC Life Insurance Assignment.
(j) the occurrence of any default or event of default (after giving effect to any grace periods) under the Factoring Agreement or the Factoring Agreement shall be terminated or the parties shall fail to operate thereunder, other than the termination of the Factoring Agreement by the Company in accordance with the Factoring Termination Agreement.
10.2. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that, the principal amount making of all future loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Note at Financing Agreement shall be thereafter in the time outstandingAgent's or the Required Lenders' sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties, shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Lenders' reasonable judgment. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all other amounts payable under this Note to be forthwith Obligations shall become immediately due and payable, whereupon such principal and ; (b) the Agent may charge the Company the Default Rate of Interest on all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that then outstanding or thereafter incurred Obligations in case the Principal lieu of the Note becomes due and payable by declaration or otherwiseinterest provided for in Section 8 of this Financing Agreement, then provided that, with respect to this clause "(b)" the Agent has given the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection written notice of the sums so due and unpaidEvent of Default, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Noteprovided further however, wherever situated, that no notice is required if the monies adjudicated or decreed to be payable.Event of Default is the Event listed in Paragraph 10.1
Appears in 1 contract
Events of Default and Remedies. The following constitute “Events of Default” under this Agreement:
(a) Any one or more failure by the Operator to pay to Trustee, as assignee of the following events which shall have occurred and Owner, when due the User Fee or any installment thereof or to pay any other payment required to be continuing shall constitute an event of default (“Event of Default”):paid hereunder;
(ib) The Company failure by the Operator to maintain insurance on the Detention Facility in accordance with Section 11 hereof;
(c) failure by the Operator to observe and perform any other covenant, condition or agreement contained herein or in any subsidiary other document or agreement executed in connection herewith on its part to be observed or performed for a period of thirty (A30) days after written notice is given to the Operator specifying such failure and requesting that it be remedied; provided, however, that, if the failure stated in such notice cannot be corrected within such thirty (30) day period, Owner will not reasonably withhold its consent to an extension of such time if corrective action is instituted by the Operator within the applicable period and diligently pursued until the default is corrected;
(d) initiation by the Operator of a proceeding under any federal or state bankruptcy or insolvency law seeking relief under such laws concerning the indebtedness of the Operator;
(e) the Operator shall institute any proceeding be or voluntary case seeking to adjudicate it bankrupt or become insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply pay its debts generally; (C) shall as they mature, or make a general an assignment for the benefit of creditors; or (D) the Operator shall take any action apply for or consent to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a any receiver, trusteetrustee or similar officer for it, custodian or other similar official for the Company or for all or any substantial part of its property; or such receiver, and either trustee or similar officer shall be appointed without the application or consent of the Operator; or the Operator shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall not be instituted (by petition, application or otherwise) against the Operator; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Operator;
(f) determination by Owner that any material representation or warranty made by the Operator or in any other document executed in connection herewith was untrue in any material respect when made; or
(g) the occurrence of a default under the INS Contract or any Agency Contract. Whenever any Event of Default shall have been dismissed occurred and be continuing, Owner shall have the right, at its sole option without any further demand or shall not have been stayed notice, to take any one or any combination of the following remedial steps and such other steps which are accorded to the Owner, by applicable law:
(i) by notice to the Operator and the Trustee, terminate this Agreement and all right, title and interest of Operator hereunder;
(ii) at the direction of the Insurer and with the consent of INS, terminate this Agreement and provide for a period of sixty successor Operator acceptable to the Insurer and the INS;
(60iii) days or any take possession of the actions sought Detention Facility, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Detention Facility for use over a term in a commercially reasonable manner, all for the account of the Owner;
(iv) proceed by appropriate court action to enforce specific performance by the Operator of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from the Operator. The Operator shall pay or repay to Trustee or the Owner all costs of such proceeding (action or court action, including, without limitation, reasonable attorneys’ fees; and
(v) take whatever action at law or in equity may appear necessary or desirable to enforce its rights hereunder and with respect to the entry of any order for relief against it Detention Facility. The Operator shall pay or repay to Trustee or the appointment Owner all costs of such action or court action, including, without limitation, reasonable attorneys’ fees. No remedy herein conferred upon or reserved to the Owner is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a receiverwaiver thereof, trusteebut any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Owner to exercise any remedy reserved to it in this Section, custodian it shall not be necessary to give any notice other than such notice as may be required by this Section. All remedies herein conferred upon or other similar official for it or for any substantial part reserved to the Owner shall survive the termination of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) this Agreement. If an Event of Default described above has occurredoccurs hereunder, then Owner may communicate with the Holder mayINS and its representatives regarding the Event of Default, without further notice to Operator, the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal operation of the Note becomes due Detention Facility or any other matter and payable by declaration may negotiate with the INS regarding the Detention Facility, the INS Contract and the use and operation of the Detention Facility; and none of those actions or any related actions or communications shall be deemed to constitute interference, intentional or otherwise, then by Owner with the Company will pay INS Contract or Operator’s relationship with the INS or be deemed to be disclosure of any information which arguably may be considered confidential. However, Owner shall not be under any obligation to take any of the foregoing actions. Owner and its agents and representatives may from time to time enter the Detention Facility to inspect and to assure that Operator is complying with its obligation under this Agreement. If Operator fails to satisfy any of its obligations hereunder, then, regardless of whether an Event of Default has occurred or has been declared, Owner, Trustee or Insurer may cure the failure; and Operator, on demand, shall reimburse Owner, Trustee or Insurer for any cost and expense incurred by Owner in cash to curing the Holder failure, together with interest at the rate set forth in Section l(f) of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableAgreement.
Appears in 1 contract
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company;
(“Event b) the failure of Default”):the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) Business Days and dismissed and vacated within forty five (45) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company’s Subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company’s Subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within thirty (6030) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company’s Subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in subparagraph e below) or in any other written agreement between the Company or the Agent, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent’s satisfaction for a period of ten (10) Business Days from the date of such breach;
(e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Revolving Loan Account on the due date thereof;
(g) the Company shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this subparagraph (h) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(h) without the prior written consent of the Agent and, except as permitted in the Subordination Agreement or this Financing Agreement, the Company shall (x) amend or modify the Subordinated Debt, (y) make any payment on account of the Subordinated Debt or (z) grant any lien or security interest in the Company’s assets to any Subordinating Creditor;
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $500,000; or
(i) Xxxxx Xxx ceases for any reason whatsoever (other than as a result of death, disability or other incapacity) to be actively engaged in the management of the Company or (ii) Xxxxx Xxx, the spouse of Xxxxx Xxx, the issue of Xxxxx Xxx, revocable trusts established by or for the benefit of any of the foregoing persons and/or Affiliates of Xxxxx Xxx shall not own, in the aggregate, at least 51% of the issued and outstanding shares of common stock of the Company or (iii) the stock of any of the Subsidiaries of the Company is transferred.
(k) the occurrence of an event of default (after the expiration of any cure period expressly permitted thereunder) by any of the Company’s Subsidiaries under any lending agreement to which any of them are bound to the extent such lending agreement has an unpaid outstanding balance in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in the Agent’s or the Required Lenders’ sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, and open Letters of Credit and provide Letters of Credit Guaranties shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent’s or the Required Lenders’ satisfaction in the exercise of the Agent’s and the Lenders’ reasonable judgement. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all Obligations shall become immediately due and payable; (b) the Agent may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause “(b)” the Agent has given the Company written notice of the Event of Default, provided further however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c) of this Section 10; and (c) the Agent may immediately terminate this Financing Agreement upon notice to the Company; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by the Agent. The exercise of any option is not exclusive of any other option, which may be exercised at any time by the Agent.
10.3 Immediately upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or the Agent may use, at the Company’s expense, such of the Company’s personnel, supplies or space at the Company’s places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon, provided that (i) Agent shall not remove any of the foregoing items if Borrower shall provide copies of such items to Agent on a consensual basis, and (ii) in the event any such items are removed from any premises of the Company by Agent, Agent shall provide to representatives of the Company access to such items during regular business hours on reasonable prior notice; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent’s sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate and any such costs shall be deemed an Obligation hereunder. The Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make it available to the Agent at premises of the Company or elsewhere and to make available to the Agent the premises and facilities of the Company for the purpose of the Agent’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due, in such order as the Agent may elect, and the Company shall remain liable to the Agent for any deficiencies, and the Agent in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies the Agent and holds the Agent harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on the Agent by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to claims brought by the Company, declare the principal amount Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold the Agent harmless, absent the Agent’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstandingforegoing) have been finally and indefeasibly paid in full. In furtherance thereof the Agent, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgment. Any applicable mortgage(s), deed(s) of trust or assignment(s) issued to the Agent on the Real Estate shall govern the rights and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal remedies of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableAgent thereto.
Appears in 1 contract
Samples: Financing Agreement (Viewsonic Corp)
Events of Default and Remedies. (a) Any one or more Section 10.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (herein “Event Events of Default”):
(a) cessation of the business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and obligations of the Company;
(b) the failure of the Company to generally meet its debts as they mature;
(i) The the commencement by the Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within twenty (20) days and dismissed and vacated within forty-five (45) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company’s subsidiaries, or seeking dissolutionany one of them (other than any Inactive Subsidiary), liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company’s subsidiaries, or any one of them (other than any Inactive Subsidiary), of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within twenty (20) days and dismissed or shall not have been stayed for a period of sixty vacated within forty-five (6045) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company’s subsidiaries, or any one of them (other than any Inactive Subsidiary), shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by the Company of any warranty or representation in any material respect or covenant contained herein (other than those referred to in subparagraph (e) and (f) below) or in any other written agreement between the Company or CIT, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until (if such Default is capable of cure) such Default shall remain unremedied to CIT’s satisfaction for a period of ten (10) Business Days from the date of such breach;
(e) breach by the Company of any covenant set forth in Sections 7.3 and 7.8 hereof, provided that any such breach shall not constitute an Event of Default unless CIT has provided notice of such breach to the Company and Company has not cured such breach within three (3) Business Days, provided further, that Company shall not be entitled to the benefit of the foregoing notice obligation on the part of CIT and subsequent cure period more than three (3) times in the aggregate during any consecutive twelve month period;
(f) breach by the Company of any warranty, representation or covenant of Sections 3.3 (other than the fourth sentence of Section 3.3) and 3.4 hereof; Sections 6.3 and 6.4 (other than the first sentence of Section 6.4) hereof; Sections 7.1, 7.5, 7.6, and 7.9 through 7.14 hereof;
(g) failure of the Company to pay any of the Obligations when due, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Revolving Loan Account on the due date thereof;
(h) the Company shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this subparagraph (g) such event or condition (x) remains uncured for a period of thirty (30) days from date of occurrence and (y) could, in the reasonable opinion of CIT, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company;
(i) without the prior written consent of CIT and, except as permitted in the Subordination Agreement, the Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt;
(j) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods or any written waiver thereof by the affected party) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $250,000; or
(k) failure of the Company to maintain its existing federal, state and other business licenses, certifications and permits which are material to the operation of the Company’s business in full force, scope and effect, including, without limitation, its certification pursuant to the entry Clinical Laboratory Improvement Amendments of 1988 (“CLIA”), its laboratory testing license under the laws of the State of California, and its status as an approved provider by the Centers for Medicare and Medicaid Services (“CMS”).
Section 10.2 Upon the occurrence and during the Continuation of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in CIT’s sole discretion and the obligation of CIT to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties, shall cease unless such Default is cured to CIT’s satisfaction or Event of Default is waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default: (a) all Obligations shall become immediately due and payable; (b) CIT may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause “(b)” CIT has given the Company written notice of the Event of Default; provided, however, that no notice is required if the Event of Default is the Event listed in Section 10.1(c), and (c) CIT may immediately terminate this Financing Agreement upon notice to the Company; provided, however, that upon the occurrence of an Event of Default listed in Section 10.1(c), this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by CIT. The exercise of any order for relief against it option is not exclusive of any other option, which may be exercised at any time by CIT.
Section 10.3 Immediately upon the occurrence of any Event of Default, CIT may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Company’s expense, such of the Company’s personnel, supplies or space at the Company’s places of business or otherwise, as may be necessary to properly administer and control the Accounts or the appointment handling of collections and realizations thereon; (b) bring suit, in the name of the Company or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or CIT; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT’s sole option and discretion, and CIT may bid or become a receiverpurchaser at any such sale, trusteefree from any right of redemption, custodian which right is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; (e) enter into the premises of the Company and other similar official locations for it the purpose of inspecting the Collateral and any and all books and records relating thereto, and CIT may use, at the Company’s expense, such of the Company’s personnel, supplies or for space at the Company’s places of business or otherwise, as may be necessary to properly inspect and examine the Collateral; and (f) exercise any substantial part other rights and remedies provided in law, in equity, by contract or otherwise. CIT shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of its property) shall occur; or
(iii) The Company shall fail to pay the all or any part of the Principal when Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, CIT shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CIT shall deem appropriate and any such costs shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to this section shall not effect commercial reasonableness of the sale. The Company agrees, at the request of CIT, to assemble the Inventory and Equipment and to make it available to CIT at premises of the Company or elsewhere and to make available to CIT the premises and facilities of the Company for the purpose of CIT’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations, whether due or to become due, in such order as CIT may elect, and the Company shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies CIT and holds CIT harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the exercise of any of its rights, remedies and interests hereunder;
(b) If an Event of Default described above has occurred, then the Holder mayincluding, without further notice limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the Collateral, defending its interests in Collateral (including pursuant to any claims brought by the Company, declare the principal amount Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstanding, foregoing) have been finally and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that indefeasibly paid in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalfull. In case furtherance thereof CIT, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgment. Any applicable mortgage(s), deed(s) of trust or assignment(s) issued to CIT on the Company Real Estate shall fail forthwith to pay such amount, govern the Holder may commence an action or proceeding at law or in equity for the collection rights and remedies of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableCIT thereto.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) Default in the payment of the principal or accrued interest on this Note or upon any other indebtedness of the Company after the date hereof that is greater than $100,000, as and when the same shall become due, whether by default or otherwise, which Default shall have continued for a period of five (5) business days; or
(ii) Any representation or warranty made by the Company or any officer of the Company in the Notes, or in any agreement, report, certificate or other document delivered to the Holder pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder; or
(iii) The Company shall fail to perform or observe any affirmative covenant contained in Section 4 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5(a)(iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of such entry.
(vii) Delisting of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading; Company's failure to comply with the conditions for listing; or notification that the Company is not in compliance with the conditions for such continued listing.
(viii) The issuance of an SEC stop trade order or an order suspending trading of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading for longer than five (5) trading days.
(ix) The failure by the Company to issue shares of Common Stock to the Holder upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of this Note, or the failure to transfer or cause its transfer agent to transfer (electronically or in certificated form) any certificate for shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, or the failure to remove any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, and any such failure shall continue uncured for ten (10) days after the Company shall have been notified thereof in writing by the Holder;
(x) The failure by the Company to file the Registration Statement on or about April 30th, 2006 or obtain effectiveness with the Securities and Exchange Commission of the Registration Statement within 150 days from that date or such Registration Statement lapses in effect (or sales cannot otherwise be made there under effective, whether by reason of the Company's failure to amend or supplement the prospectus included therein) for more than thirty (30) consecutive days after the Registration Statement becomes effective which shall include Common Stock into which this Note may be converted; or
(xi) The Company shall fail encumber or hypothecate the collateral subject to pay the Security Agreement to any part party;
(xii) A default by the Company of a material term, covenant, warranty or undertaking of any other agreement to which the Principal when due hereunder;Company and Holder are parties, or the occurrence of an event of default under any such other agreement; or
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Holder and the Note shall bear interest until paid at the rate of 12% per annum or such amount as shall be allowed by law (the "Default Interest Rate"). If an Event of Default described above has occurredoccurs and is continuing, then Holder may pursue any available remedy to collect the Holder may, without further notice payment of all amounts due under the Note or to enforce the Company, declare performance of any provision of the principal amount Note. No waiver of this any default under the Note at the time outstandingshall be construed as a waiver of any subsequent default, and all other amounts payable under this Note the failure to be forthwith due and payable, whereupon exercise any right or remedy thereunder shall not waive the right to exercise such principal and all such amounts shall become and be forthwith due and payableright or remedy thereafter.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The Company agrees that it shall give notice to the Holder at its registered address by facsimile, confirmed by certified mail, of the occurrence of any Event of Default within ten (10) days after such Event of Default shall have occurred.
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Events of Default and Remedies. (a) Any one or more 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Financing Agreement immediately upon the occurrence of any of the following events which shall have occurred and be continuing shall constitute an event of default (“Event herein "Events of Default”"):
(a) cessation of the business of any one of i) The Xxxxxx California, ii) Xxxxxx Florida, iii) Xxxxxx Texas or iv) Xxxxxx'x Services or the calling of a general meeting of the creditors of any of the Companies for purposes of compromising the debts and obligations of that Company;
b) the failure of any Company to generally meet its debts as they mature;
c) the commencement of the Companies, or any subsidiary (A) shall institute one of them, of any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law;
d) the commencement against it of such a proceeding or casethe Companies, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement one of such case or proceedingthem, or shall consent to or acquiesce in the appointment of such a receiverany bankruptcy, trusteeinsolvency, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding uparrangement, reorganization, arrangementreceivership or similar proceedings under any federal or state law provided, adjustmenthowever, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either that such proceeding Default shall not have been be deemed an Event of Default if the proceeding, petition, case or arrangement is dismissed or shall not have been stayed for a period of within sixty (60) days of the filing of, or the commencement of, such petition, case, proceeding or arrangement;
e) material breach by any Company of any warranty, representation or covenant contained herein (other than those referred to in subparagraphs (f) and (g) below) or in any Loan Document between the Companies, or any one of them, and CITBC, provided that such Default by the Companies, or any one of them, of any of the actions sought warranties, representations or covenants referred to in such proceeding this clause (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its propertye) shall occur; or
(iii) The Company shall fail not be deemed to pay the any part of the Principal when due hereunder;
(b) If be an Event of Default described above has occurred, then unless and until such breach shall remain unremedied to CITBC's reasonable satisfaction for a period of thirty (30) days from the Holder may, without further date of CITBC's notice to the Companies of such breach;
f) breach by the Companies, or any one of them, of any warranty, representation or covenant of: i) the second sentence of Paragraph 3 of Section 3, hereof; or ii) Section 6, Paragraph 1 (other than the first sentence of said Paragraph 1) hereof; or iii) Section 6, Paragraph 5 hereof; iv) subparagraph (a) of the first sentence of Paragraph 7 of Section 6 hereof; or v) subparagraph A of Paragraph 10 of Section 6 hereof; provided, however, that in any such instance, such Default by the Companies or any one of them, shall not be deemed an Event of Default unless and until such Default shall remain unremedied to CITBC's reasonable satisfaction for a period of five (5) business days from the date of CITBC's notice to Companies of such breach;
g) breach by the Companies, or any one of them, of any warranty, representation or covenant of : i) the first sentence of Paragraph 3 of Section 3 hereof; or ii) the second, third and fourth sentences of Paragraph 4 of Section 3 hereof; or iii) Paragraph 3 of Section 5 hereof; or iv) Paragraph 4 of Section 6 hereof; or v) Paragraph 9 of Section 6 hereof; or vi) Paragraph 10 (other than subparagraph A) of Section 6 hereof; or vii) Paragraph 11 of Section 6 hereof; or viii) Paragraph 12 of Section 6 hereof; or ix) Paragraph 13 of Section 6 hereof; or x) Paragraph 14 of Section 6 hereof; or xi) Paragraph 23 of Section 6 hereof; or xii) Paragraph 24 of Section 6 hereof;
h) except as otherwise provided in Section 7, Paragraph 7 of this Financing Agreement, failure of the Companies, or any one of them, to pay any of the Obligations within ten (10) days of the date due thereof;
i) any Company shall i) engage in any "prohibited transaction" as defined in ERISA, ii) have any "accumulated funding deficiency" as defined in ERISA, iii) have any Reportable Event as defined in ERISA, iv) terminate any Plan, as defined in ERISA or v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any Plan, as defined in ERISA, and with respect to this subparagraph (i) such event or condition x) remains uncured for a period of thirty (30) days from date of occurrence and y) could reasonably be expected to subject that Company to any tax, penalty or other liability materially adverse to the business, operations or financial condition of the Companies taken as a whole;
j) without the prior written consent of CITBC, the Parent or the Companies, or any one of them, shall fail to deliver to CITBC certificates evidencing any now or hereafter issued common stock of any of the Companies, in conjunction with stock powers therefor, all in form and substance reasonably satisfactory to CITBC;
k) the holder, trustee or beneficiary of any instrument referred to in this subparagraph (k) shall have a then current right to accelerate (whether or not such right is actually exercised) pursuant to (i) any instrument evidencing industrial development revenue bond indebtedness of any Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
or (cii) The Company covenants that in case the Principal any instrument evidencing outstanding Indebtedness of the Note becomes due and payable by declaration Companies, or otherwiseany one of them, then the Company will pay in cash to the Holder excess of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.$75,000.00;
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Events of Default and Remedies. (6.1) It shall be an "Event of Default" under this Leasehold Mortgage if (a) Any one The Borrower shall fail to pay any principal or more interest due under either Note when and as the same becomes due (whether at the stated maturity or at a date fixed for any installment payment or otherwise); or (b) The Borrower shall fail to comply with or perform any of the following events which shall have occurred terms, conditions or covenants of either Note, the Loan and be continuing shall constitute an event of default Security Agreement, this Leasehold Mortgage, or any Loan Document described in the Note; or (“Event of Default”):
(ic) The Company Borrower or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or principals shall consent to make an assignment for the commencement against it benefit of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become duecreditors, or shall admit in writing its inability to apply its pay debts generally; (C) as they become due, or shall make file a general assignment for the benefit of creditors; petition in bankruptcy, or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it adjudicated a bankrupt or insolvent, or shall file a petition seeking dissolution, liquidation, winding up, any reorganization, arrangement, adjustmentcomposition, protectionreadjustment, liquidation, dissolution or similar relief of debtorsunder any present or future statute, law or regulation, or seeking shall file an answer admitting or not contesting the entry material allegations of an order for relief a petition filed against it in any such proceedings, or shall seek or consent to or acquiesce in the appointment of a receiver, any trustee, custodian receiver or other similar official for liquidator of the Company Borrower or for any substantial Guarantor or any material part of its propertyproperties, and either such proceeding shall not have been dismissed or shall not have been stayed for a period within 90 days after the appointment without the consent or acquiescence of sixty (60) days the Borrower or any Guarantor or a trustee, receiver or liquidator of the actions sought in such proceeding (including, without limitation, the entry of Borrower or any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial material part of its property) shall occurproperties have such appointment vacated (or such events or filings occur with respect to any Guarantor); or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Events of Default and Remedies. (a) Any Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Borrower fails to pay any amount of principal and interest when due under any Note and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Borrower in this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Borrower (A) fails to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Borrower which is not an individual shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Borrower that is an individual dies or becomes permanently and totally disabled; (vi) Borrower (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and Lender or any affiliate of Lender; (viii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and any of its other creditors, (ix) if Borrower’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (x) Lender shall have determined, in its sole discretion, that a material adverse change in Borrower’s existing or prospective financial condition, management or results of operations since the date hereof which may affect the ability of Borrower to perform its obligations under the Loan Documents has occurred; or (xi) the owners of the capital stock or other units of ownership on the date of this Agreement entitled to vote for the election of the board of directors of Borrower or other similar governing body cease to own or do not have the unencumbered right to vote in the aggregate at least ninety percent (90%) of such capital stock or other ownership interest of Borrower.
(b) Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrower under this Agreement, any Notes, or any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for reinvestment costs and not as a penalty), and (ii) proceed to exercise any one or more of the following events remedies and any additional rights and remedies permitted by law (none of which shall have occurred and be continuing shall constitute an event exclusive), all of default (“Event of Default”):which are hereby authorized by Borrower:
(i) The Company Borrower shall upon demand assemble or cause to be assembled any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any all of the actions set forth above in this subsection 4(a)(i)Equipment at a location designated by Lender; and/or to return promptly, at Borrower’s expense, any or all of the Equipment to Lender at such location;
(ii) Any proceeding shall Lender may itself or by its agents enter upon the premises of Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrower any or all of the Equipment, wherever it may be instituted against the Company seeking to adjudicate it a bankrupt or insolventlocated, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an without any court order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or process of law and without liability for any substantial part damages occasioned by such taking of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; orpossession;
(iii) The Company shall fail to pay the Sell, lease or otherwise dispose of any part or all of the Principal when due hereunderEquipment, whether or not in Lender’s possession, at public or private sale with or without notice to Borrower, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Borrower under the Notes and the other Loan Documents, with Borrower remaining liable for any deficiency, or retain any and all of the Equipment;
(biv) If Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrower or to recover damages associated with such Event of Default described above has occurredDefault; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then the Holder may, without further notice to the Company, declare the principal amount held by Lender or any affiliate of this Note at the time outstandingLender, and all other amounts payable with respect to which Borrower has an interest, against any obligations of Borrower arising under this Note Agreement, any Notes or any other Loan Document, whether or not Borrower has pledged, assigned or granted a security interest to be forthwith due and payable, whereupon such principal and Lender in any or all such amounts shall become and be forthwith due and payablesums as collateral for said obligations.
(c) The Company covenants that Borrower shall indemnify, defend and hold Lender harmless for any loss, personal injury (including death), or damage to property, suffered by Lender, its employees or any of its agents in case connection with its entry onto the Principal premises of Borrower or any third party hereunder. Each of the Note becomes due rights and payable by declaration remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or otherwiseany other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, then the Company will pay in cash power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the Holder future exercise of this Noteany such right, the whole amount that then power or remedy. Waiver by Lender of any Event of Default shall have become due and payable on this Note for Principal. In case the Company not be a waiver by Lender of any other or subsequent Events of Default.
(d) Borrower shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or notify Lender in equity for the collection writing of the sums so due and unpaidoccurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may prosecute in any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableevent within ten (10) days thereafter.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Services of America Inc /Fl)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of interest upon this Note, as and when the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and when the same shall become due; or
(iii) Default in the payment of any other obligation of the Company in an amount in excess of $500,000; or
(iv) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder to the Company; or
(v) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i3 (iv);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Convertible Promissory Note (TheRetirementSolution.com, Inc.)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”):":
(a) Maker shall fail to pay the amount due under this Note on or preceding the Maturity Date;
(b) Maker shall fail to perform, observe and comply with any covenant, agreement, or condition (other than the covenant to pay amounts of principal or interest thereon due under this Note) contained in this Note and such failure continues for a period of ten (10) days following written notice to Maker from Holder of the continuation of such failure; or
(c) Maker (i) The Company shall generally not, or any subsidiary be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; (Aii) shall institute make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for itself or a substantial part of its assets; (iii) shall commence any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding upunder any bankruptcy, reorganization, arrangementarrangement or readjustment of debt law or statute of any jurisdiction, adjustmentwhether now or hereafter in effect; (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, protectionagainst it, in which an adjudication or appointment is made or order for relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsis entered, or seeking which petition, application or proceeding remains undismissed or unstayed for a period of thirty (30) days or more; (v) or shall be the entry subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture; (vi) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a receivercustodian, trustee, custodian receiver or other similar official trustee for such the Company all or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (Dvii) shall take suffer any action such custodianship, receivership or trusteeship to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed continue undischarged for a period of sixty thirty (6030) days or more.
(d) Any warranty, representation or other statement by or on behalf of Maker contained in any of the actions sought instrument furnished in such proceeding compliance with or in reference thereto shall have been false or misleading in any material respect when made.
(including, without limitation, the entry e) Maker shall have defaulted with respect to any payment obligation in respect of any order for relief against it indebtedness of Maker (other than trade payables) or under any agreement securing or relating to such indebtedness, or any event shall occur and be continuing or any condition shall exist in respect of any indebtedness (other than trade payables), or under any agreement securing or relating to such indebtedness, that causes such indebtedness, or a portion thereof, to become due prior to its stated maturity or prior to its regularly scheduled date or dates of payment (and the appointment holder of a receiver, trustee, custodian or other similar official for it or for any substantial part such indebtedness has caused such to become due). Upon the occurrence of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurredin paragraph (c) of Section 4 hereof, then the Holder may, without further notice to the Company, declare the outstanding principal amount of this Note at shall automatically become immediately due and payable. Upon the time outstandingexistence of an Event of Default (other than pursuant to paragraph (c) of Section 4 hereof), and all other amounts payable under this Note Holder may declare the outstanding principal amount of the Note, to be forthwith due and payable, whereupon such . Upon the outstanding principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal amount of the this Note becomes becoming due and payable under this Section 4, whether automatically or by declaration or otherwise, then the Company will pay in cash to the Holder of this Notedeclaration, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.outstanding
Appears in 1 contract
Samples: Senior Note (N2k Inc)
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“"Event of Default”"):
(i) Default in the payment of the principal of this Note, as and when the same shall become due; or
(ii) The Company shall fail to perform or observe any affirmative covenant contained in this Note and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given by the Holder to the Company; or
(iii) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5 (iii);; or
(iiiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiiv) The Company shall fail to pay the any part A consolidation or merger of the Principal when due hereunder;Company with any other entity or a disposition, sale or encumbrance of all or substantially all of the Company's property or business or any transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of has occurred, unless such other merging or acquiring entity assumes, in a legally binding document enforceable against it, the obligations of the Company under this Note; or
(vi) One or more final judgments or orders for the payment of money in excess of $2,000,000 in the aggregate shall be rendered against the Company, and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order, or (B) there shall be any period of thirty (30) days during which enforcement of any such judgment or order shall not be discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstanding, outstanding and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal principal of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees and disbursements of the Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
Appears in 1 contract
Samples: Note Agreement (Globus Wireless LTD)
Events of Default and Remedies. (a) Any one or more Each of the following events which shall have occurred and be continuing acts or occurrences shall constitute an event of default (“"Event of Default”):" hereunder: -----------------
(i) The Company default in the payment of the Purchase Price on the Option Date, or in the payment of the Purchase Price or in the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment or Completion Costs Payment, as applicable, on the Lease Termination Date or the Purchase Closing Date, as applicable; or the default in the payment when due of any Basic Rent or Interim Special Rent and the continuance of such default for five (5) Business Days following notice from the Lessor or the Agent of nonpayment thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any subsidiary other amount due hereunder or under any other Operative Document and the continuance of such default for thirty (A30) days following notice thereof from the Lessor or the Agent; or
(ii) any representation or warranty made or deemed made by the Lessee herein, in any other Operative Document or otherwise in writing in connection with or pursuant to this Lease or any other Operative Document, shall institute be false or misleading in any proceeding material respect on the date made or deemed made; or
(iii) an Event of Default under the Credit Agreement;
(iv) The Lessee or any Material Subsidiary shall commence a voluntary case or other proceeding seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, reorganization or other relief or composition of it with respect to itself or its debts under any law relating to bankruptcy, insolvency or reorganization other similar law now or relief of debtors, hereafter in effect or seeking the entry of any order for relief or the appointment of a trustee, receiver, trusteeliquidator, custodian or other similar official for such the Company of it or any subsidiary or for any substantial part of its propertyProperty, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceedingit, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; , or (D) shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);foregoing; or
(iiv) Any an involuntary case or other proceeding shall be instituted commenced against the Company Lessee or any Material Subsidiary seeking liquidation, reorganization or other relief with respect to adjudicate it a bankrupt or insolventits debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, trusteeliquidator, custodian or other similar official for the Company of it or for any substantial part of its propertyProperty, and either such involuntary case or other proceeding shall not have been dismissed or shall not have been stayed remain undismissed and unstayed for a period of sixty (60) days days; or an order for relief shall be entered against the Lessee or any Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or
(vi) The Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12, 14 and 26 of this Lease; or
(vii) 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 subsections (i) or (v) above), shall fail to observe or perform any covenant or agreement contained or incorporated by reference in any Operative Document (other than those covered by subsections (i) or (v) above or giving rise to an Event of Default pursuant to subsection (iii) above), and in either case such failure shall not have been cured within thirty (30) days after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Agent at the request of the actions sought Required Lenders or (B) the chief financial, chief operating, chief legal or an executive, senior financial or accounting officer of the Lessee otherwise becomes aware of any such failure; or
(viii) The Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vii), the term "abandon" shall not include the mere failure of the 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) Upon the occurrence and during the continuance of any Event of Default, the Lessor may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such proceeding provisions, or any other equitable or legal remedy, all as the Lessor shall deem necessary or advisable; and/or
(ii) by notice to the Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all other remedies available under applicable law or at equity.
(c) After the occurrence and during the continuance of a Cancellation Event or Termination Event, in the event the Lessor elects not to terminate this Lease and the Lessee has not exercised its option under Section 15(c), this Lease shall continue in effect and the Lessor may enforce all of the Lessor's rights and remedies under this Lease, including, without limitation, the entry right to recover the Interim Rent Basic Rent and Supplemental Rent, any Completion Costs and all other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease. For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lessor or the Agent to relet the Facility or any part thereof, including, without limitation, termination of any order for relief against it sublease of the Facility and removal of any subtenant from the Facility, (iii) or the appointment of a receiverreceiver upon the initiative of the Lessor to protect the Lessor's interest under this Lease.
(d) If (i) on the Lease Termination Date, trusteethe Facility is not acquired by the Lessee or its designee by payment of the Purchase Price, custodian or other similar official (ii) on the Cancellation Date or Option Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with the Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Facility and the right to enter onto the Site, and the Lessor may thenceforth hold, possess and enjoy such Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such repossession or the Facility or entry onto the Site.
(e) Should the Lessor elect to repossess the Facility or any 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 the Lessor or its agents or assigns to enter onto the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any part thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) At any time after the repossession of the Facility or any part thereof, whether or not this Lease shall have been cancelled or terminated, the Lessor may (but shall be under no obligation to) relet the Facility or the applicable portion thereof without notice to the Lessee, for it such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of such reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any substantial part of its property) shall occur; orfailure to collect any rent due upon any such reletting.
(iiig) The Company shall fail to pay the any part remedies herein provided in case of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to the Company, declare the principal amount of this Note at the time outstandingare in addition to, and without prejudice to, 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 amounts payable under this Note remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to be forthwith due and payableexercise any other remedy hereunder or existing at law, whereupon such principal and all such amounts shall become and be forthwith due and payablein equity or in bankruptcy.
(ch) The Company covenants No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the extent permitted by applicable law, the Lessee waives any right it may have at any time to require the Lessor to mitigate the Lessor's damages upon the occurrence of a Default or Event of Default by taking any action or exercising any remedy that in case may be available to the Principal Lessor, the exercise of remedies hereunder being at the discretion of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableLessor.
Appears in 1 contract
Events of Default and Remedies. (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
(i) Default in the payment of the principal or accrued interest on this Note or upon any other indebtedness of the Company after the date hereof that is greater than $100,000, as and when the same shall become due, whether by default or otherwise, which Default shall have continued for a period of five (5) business days; or
(ii) Any knowing representation or warranty made by the Company or any officer of the Company in the Note, or in any agreement, report, certificate or other document delivered to the Seller pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days after written notice thereof shall have been given by the Seller; or
(iii) The Company shall fail to perform or observe any material affirmative covenant contained in Section 4 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied thirty (30) days after written notice thereof shall have been given by the Seller; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its material debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its material debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i5(a)(iv);; or
(iiv) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iiivi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of such entry.
(vii) The issuance of an SEC stop trade order or an order suspending trading of the Common Stock from the principal market or exchange on which the Common Stock is listed for trading for longer than fifteen (15) trading days.
(viii) The Company shall fail encumber or hypothecate the collateral subject to pay the Security Agreement to any part party;
(ix) A default by the Company of a material term, covenant, warranty or undertaking of any other agreement to which the Principal when due hereunder;Company and Seller are parties, or the occurrence of an event of default under any such other agreement; or
(b) In the event of and immediately upon the occurrence of an Event of Default, the Note shall become immediately due and payable without any action by the Seller and the Note shall bear interest until paid at the rate of 12% per annum or such amount as shall be allowed by law (the "Default Interest Rate"). If an Event of Default described above has occurredoccurs and is continuing, then Seller may pursue any available remedy to collect the Holder may, without further notice payment of all amounts due under the Note or to enforce the Company, declare performance of any provision of the principal amount Note. No waiver of this any default under the Note at the time outstandingshall be construed as a waiver of any subsequent default, and all other amounts payable under this Note the failure to be forthwith due and payable, whereupon exercise any right or remedy thereunder shall not waive the right to exercise such principal and all such amounts shall become and be forthwith due and payableright or remedy thereafter.
(c) The Company covenants that in case the Principal of principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder Seller of this Note, the whole amount that then shall have become due and payable on this Note for Principalprincipal or interest, as the case may be, and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable fees of the Seller's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder Seller may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The Company agrees that it shall give notice to the Seller at its registered address by facsimile, confirmed by certified mail, of the occurrence of any Event of Default within twenty (20) days after such Event of Default shall have occurred.
Appears in 1 contract
Samples: Asset Purchase Agreement (Collectible Concepts Group Inc)
Events of Default and Remedies. 10.1 Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following Events of Default:
(a) Any one or more cessation of the following events which shall have occurred business of the Company or the calling of a meeting of the creditors of the Company for purposes of compromising the debts and be continuing shall constitute an event obligations of default the Company; (“Event b) the failure of Default”):the Company to generally meet its debts as they mature; (c)
(i) the commencement by The Company or of any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolventbankruptcy, or seeking dissolutioninsolvency, liquidation, winding uparrangement, reorganization, arrangement, adjustment, protection, relief receivership or composition of it or its debts similar proceedings under any law relating to bankruptcy, insolvency federal or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to state law; (ii) the commencement against it the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such a Default shall not be deemed an Event of Default if such proceeding or caseis controverted within ten (10) days and dismissed and vacated within forty-five (45) days of commencement, or shall file an answer except in the event that any of the actions sought in any such case proceeding shall occur or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Company shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
any such proceeding; or (iiiii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolventcommencement (x) by the Company's subsidiaries, or seeking dissolutionany one of them, liquidationof any bankruptcy, winding upinsolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, adjustmentreorganization, protectionreceivership or similar proceeding under applicable law, relief provided that such Default shall not be deemed an Event of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either Default if such proceeding shall not have been is controverted within ten (10) days and dismissed or shall not have been stayed for a period of sixty vacated within forty-five (6045) days or of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding; (d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Company or the Agent, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent's satisfaction for a period of thirty (30) days from the date of such breach; (e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof; Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof; (f) failure of the Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Revolving Loan Account on the due date thereof; (g) the Company shall be found by a competent tribunal to have(i) engage in any "prohibited transaction" as defined in ERISA, (ii) have any "accumulated funding deficiency" as defined in ERISA, (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in ERISA, and with respect to this sub-paragraph (g) such event or condition (x) remains uncured for a period of thirty (30) days from date of receipt by the Company of written notice or the occurrence thereof and (y) could, in the reasonable opinion of the Agent, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Company; (h) without the prior written consent of the Agent and, except as permitted in the Subordination Agreement, the Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt; or (i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that, all loans, advances and extensions of credit provided for in Sections 3 and 5 of this Financing Agreement shall be thereafter in the Agent's or the Required Lenders' sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, open Letters of Credit and provide Letters of Credit Guaranties shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent's or the Required Lenders' satisfaction in the exercise of the Agent's and the Lenders' reasonable judgment. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all Obligations shall become immediately due and payable; (b) the Agent may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause "(b)" the Agent has given the Company written notice of the Event of Default, provided further however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c) of this Section 10; and (c) the Agent may immediately terminate this Financing Agreement upon notice to the Company; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by the Agent. The exercise of any option is not exclusive of any other option, which may be exercised at any time by the Agent.
10.3 Immediately upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located any and all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or the Agent may use, at the Company's expense, such of the Company's personnel, supplies or space at the Company's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate and any such costs shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to this paragraph shall not effect commercial reasonableness of the sale. The Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make it available to the Agent at premises of the Company or elsewhere and to make available to the Agent the premises and facilities of the Company for the purpose of the Agent's taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due, in such order as the Agent may elect, and the Company shall remain liable to the Agent for any deficiencies, and the Agent in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies the Agent and holds the Agent harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on the Agent by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the entry of Collateral, defending its interests in Collateral (including pursuant to any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(iii) The Company shall fail to pay the any part of the Principal when due hereunder;
(b) If an Event of Default described above has occurred, then the Holder may, without further notice to claims brought by the Company, declare the principal amount Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold the Agent harmless, absent the Agent's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Note at Financing Agreement until such time as all Obligations (including the time outstandingforegoing) have been finally and indefeasibly paid in full. In furtherance thereof the Agent, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgment. Any applicable mortgage(s), deed(s) of trust or assignment(s) issued to the Agent on the Real Estate shall govern the rights and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal remedies of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableAgent thereto.
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Events of Default and Remedies. If any of the following events:
(a) The Borrower shall fail to pay any principal of, or interest on, the Note when the same becomes due and payable; or
(b) Any one representation or more of warranty made by the following events which Borrower under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed and such failure shall remain unremedied for 10 days after written notice thereof shall have occurred and be continuing shall constitute an event of default (“Event of Default”):been given to the Borrower by the Lender; or
(id) The Company Borrower shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any subsidiary (A) proceeding shall institute any proceeding be instituted by or voluntary case against the Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(i);
(ii) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company it or for any substantial part of its propertyinstituted against it (but not instituted by it), and either such proceeding shall not have been dismissed remain undismissed or shall not have been stayed unstayed for a period of sixty (60) days 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of any an order for relief against it against, or the appointment of a receiver, trustee, custodian or other similar official for for, it or for any substantial part of its property) shall occuroccur and shall not be stayed pending timely appeal (provided that the lifting of such stay shall constitute an Event of Default); or the partner shall take any corporate or partnership action to authorize any of the actions set forth above in this subsection (d); or
(iiie) Any final judgment or order for the payment of money in excess of $100,000, or any two or more final judgments or orders for the payment of money in excess of $250,000 in the aggregate, shall be rendered against the Borrower or any of its subsidiaries and the same shall not be discharged within a period of 30 days after such judgment becomes final and non-appealable; or
(f) The Company shall fail to pay the any part termination, cancellation, expiration without renewal or replacement, or material breach by Borrower of the Principal when due hereunder;Management Agreement of even date herewith between Borrower and Lender (the "Management Agreement"), or 8 (g) R.S. Xxxxx X.X. ceases at any time to devote his full-time and energies or
(bh) If an Event Any material breach by R.S. Xxxxx xx the Non-Competition Agreement of Default described above has occurredeven date herewith between Dr. Xxxxx xxx Lender; then, then and in any such event, the Holder Lender may, without further by notice to the CompanyBorrower, declare the principal amount of this Note at the time outstandingNote, all interest thereon and all other amounts payable under this Note Agreement to be forthwith due and payable, whereupon the Note, all such principal interest and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants , without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in case the Principal event of an actual or deemed entry of an order for relief under the Note becomes Federal Bankruptcy Code with respect to the Borrower the Note, all such interest and all such amounts shall automatically become and be due and payable payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableBorrower.
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Events of Default and Remedies. If at any time (any of the following, an "EVENT OF DEFAULT"):
(a) Any one or more of the following events which shall have occurred and be continuing shall constitute an event of default (“Event of Default”):
Contractor fails to (i) The Company carry out engineering, fabrication, supply, delivery, installation and testing of the Work on or with respect to any Critical Path Item at the rate of progress required by the Milestone Schedule, and (ii) prepare, implement and comply with a Schedule Recovery Plan in respect of any such delayed or incomplete Work, in each case, within the time periods and in accordance with the provisions set forth in Section 5.2 hereof; or
(b) the Contractor commits any material breach of, or fails in any material respect to comply with and observe, any provision of this Contract; or
(c) the Contractor abandons the Work for a period in excess of [REDACTED] or intimates without lawful cause or justification that the Work will not or cannot be completed; or
(d) the Contractor shall make a general assignment for the benefit of creditors, or any subsidiary (A) proceeding shall institute any proceeding or voluntary case be instituted by the Contractor seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it the Contractor or its debts under any law Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian trustee or other similar official for such the Company or any subsidiary Contractor or for any substantial part of its property, property or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) Contractor shall take any corporate action to authorize or effect any of the actions set forth above in this subsection 4(a)(iSection 24.1(d); or
(e) an involuntary petition shall be filed or an action or proceeding otherwise commenced against the Contractor seeking reorganization, arrangement or readjustment of the Contractor's debts or for any other relief under any bankruptcy or insolvency act or Law, now or hereafter existing and remain undismissed or unvacated for a period of [REDACTED]; or
(f) a receiver, assignee, liquidator, trustee or similar officer for the Contractor or for all or any part of its property shall be appointed involuntarily; or
(g) the Contractor shall file a certificate of dissolution under applicable Law or shall be liquidated, dissolved or wound up or shall commence or have commenced against it any action or proceeding for dissolution, winding up or liquidation, or shall take any corporate action in furtherance thereof; or
(h) the Contractor either:
(i) fails to make prompt payment of any undisputed invoice due to any Subcontractor or otherwise for materials or labor; or
(ii) repudiates or is in default with respect to any of its obligations to a Subcontractor; or
(i) the Contractor fails, after being notified thereof by the Developer, to promptly correct any Defective Work during performance of the Work or within the Warranty Period; or
(j) any representation or warranty made by the Contractor herein or in any certificate, financial statement or other document furnished to any Owner Person by or on behalf of the Contractor shall prove to be false or misleading in any material respect as of the time made, confirmed or furnished; then, upon the occurrence of any Event of Default referred to in paragraph (a), (b), (i) or (j) of this Section 24.1, the Developer may, by Notice in writing, advise the Contractor of such Event of Default and the Contractor shall have [REDACTED] to correct such Event of Default to the satisfaction of the Developer PROVIDED, HOWEVER, that, if such Event of Default cannot be cured in such [REDACTED] period through the diligent efforts of Contractor, but can be cured in a longer period without there occurring any failure to meet the Milestone Schedule, the Contractor shall have an additional period, not to exceed [REDACTED], so long as it shall commence the cure during such [REDACTED] period and diligently pursue such cure. If the Contractor fails to correct any such Event of Default to the satisfaction of the Developer within such [REDACTED] (or subject to the conditions set forth in the previous sentence, such longer period), or, upon the occurrence of any other Event of Default, then the Developer on behalf of the Owners may, upon written Notice (a "NOTICE OF EXERCISE OF REMEDIES") to the Contractor, exercise any or all of the following rights and remedies:
(A) exercise their rights under the Contractor Security;
(B) exercise their rights with respect to the withholding of payments to the Contractor in accordance with Section 12.5 hereof;
(C) take the Work wholly or partly out of the control of the Contractor or any other Person in whose control or possession the Work or any part of it may be, and cause to be completed the same in accordance with Section 25 hereof (a "TAKE OVER");
(iiD) Any proceeding shall be instituted against the Company seeking to adjudicate it terminate this Contract in accordance with Section 26 hereof (such event, a bankrupt or insolvent"TERMINATION FOR DEFAULT"; such Notice of Exercise of Remedies, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur"NOTICE OF TERMINATION FOR DEFAULT"); or
(iiiE) exercise any and all rights and remedies they may have under law or equity, including seeking specific performance and the recovery of damages, subject, in any event, to the provisions of Section 28 hereof. The Company shall fail to pay foregoing remedies are cumulative, and the any part Developer on behalf of the Principal when due hereunder;
Owners may elect one or more thereof without prejudice to any other right or remedy the Owners may have, subject, however, to Section 28 hereof. Notwithstanding any of the foregoing, Contractor shall be entitled upon a Termination for Default to be paid its Reimbursable Costs (band any applicable Fixed Fee and Incentive Fee so long as the Contractor has met the criteria for such fee pursuant to Section 12.2 hereof) If an Event of Default described above has occurred, then for Work performed in accordance with this Contract and the Holder may, without further notice Contract Documents by the Contractor up to the Companyeffective date of such termination, declare less any amount owing to the principal amount Owners hereunder, the latter of this Note at which amounts may be applied by the time outstanding, Owners to the payment and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal and all such amounts shall become and be forthwith due and payable.
(c) The Company covenants that in case the Principal performance of any outstanding obligations of the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to the Holder of this Note, the whole amount that then shall have become due and payable on this Note for Principal. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree against Company or other obligor upon this Note, wherever situated, the monies adjudicated or decreed to be payableContractor hereunder.
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Samples: Engineering, Procurement and Construction Contract (Viatel Inc)
