LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All Obligations shall be, at Lender's option, due and payable: (a) without notice or demand: (i) if any representation, covenant, warranty, or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or (ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or (iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event. (b) ten (10) days after written notice of the occurrence of any one or more of the following events: (i) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any Obligations; or (ii) if a judgment against Borrower in excess of $100,000 remains unpaid, unstayed or undismissed for a period of more than thirty (30) days; or (iii) if a custodian, receiver or trustee of any kind is appointed for Borrower or any of its property. (c) thirty (30) days after written notice of the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the terms, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties. 7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default") (i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest at the rate of three percent (3%) per annum above the Prime Rate upon the unpaid balance of the Funded Credit Accommodations from the date of Default until the date of full payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided that, in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's fees (both in-house and outside) all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement or otherwise) without further notice to Borrower, to enforce payment of the Receivables, to settle, compromise or release (in whole or in part) any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's or Borrower's name, to sell, assign and deliver the Receivable (or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days notice by Lender, sent by certified mail return receipt requested, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory or any other Collateral is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale. 7.3 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein). 7.4 EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS. 7.5 Notwithstanding anything contained in this Section 7 or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lender. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall be due and owing in connection with such Buyout Option. Upon the occurrence of any Default, excluding a Default pursuant to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreement.
Appears in 1 contract
Samples: Financing Agreement (Bluefly Inc)
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All 8.1 Borrower agrees that all of the loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at Lender's demand at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:events of default ("Default"):
(ia) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any ObligationsObligation, or shall breach any of the terms, covenants, conditions or provisions of this Agreement or any other agreement between the parties; or
(iib) if any guarantor, endorser or other person liable on the Obligations shall die, terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such person with, or in favor of, Lender; if any guarantor, endorser or other person liable on the Obligations shall die, terminate its guaranty or leave employment, the borrower shall have a cure period of 30 days to cure this event of Default without incurring liquidating damages (c) if any representation, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower is false or misleading in any material respect; (d) if Borrower shall become insolvent, is generally unable to pay its debts as they mature, files or has filed against it a petition in bankruptcy, liquidation or reorganization, or if a judgment against Borrower in excess of $100,000 remains unpaid, unstayed or undismissed for a period of more than thirty (30) five days; or
(iii) , or if Borrower discontinues doing business for any reason, or if a custodian, receiver or trustee of any kind is appointed for Borrower it or any of its property.
; (ce) thirty if there is a change (30) days after written notice of the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the termsby voluntary transfer, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties.
7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default")
(i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest at the rate of three percent (3%) per annum above the Prime Rate upon the unpaid balance of the Funded Credit Accommodations from the date of Default until the date of full payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided that, in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's fees (both in-house and outside) all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement death or otherwise) without further notice to Borrower, to enforce payment of the Receivables, to settle, compromise or release (in whole or in part) any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's or Borrower's name, to sell, assign and deliver the Receivable (controlling stockholders or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days notice by Lender, sent by certified mail return receipt requested, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory or any other Collateral is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale.
7.3 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein).
7.4 EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS.
7.5 Notwithstanding anything contained in this Section 7 or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lender. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall be due and owing in connection with such Buyout Option. Upon the occurrence of any Default, excluding a Default pursuant to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreement.owners; or
Appears in 1 contract
Samples: Financing Agreement (Celexx Corp)
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All 8.1 Borrower agrees that all of the loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at Lender's demand at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:events of default ("Default"):
(ia) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any ObligationsObligation, or shall breach any of the terms, covenants, conditions or provisions of this Agreement or any other agreement between the parties; or
(iib) if any guarantor, endorser or other person liable on the Obligations shall die, terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such person with, or in favor of, Lender; (c) if any representation, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower is false or misleading in any material respect; (d) if Borrower shall become insolvent, is generally unable to pay its debts as they mature, files or has filed against it a petition in bankruptcy, liquidation or reorganization, or if a judgment against Borrower in excess of $100,000 remains unpaid, unstayed or undismissed for a period of more than thirty (30) five days; or
(iii) , or if Borrower discontinues doing business for any reason, or if a custodian, receiver or trustee of any kind is appointed for Borrower it or any of its property.
; (ce) thirty if there is a change (30) days after written notice of the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the termsby voluntary transfer, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties.
7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default")
(i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest at the rate of three percent (3%) per annum above the Prime Rate upon the unpaid balance of the Funded Credit Accommodations from the date of Default until the date of full payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided that, in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's fees (both in-house and outside) all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement death or otherwise) without further notice to Borrower, to enforce payment of the Receivables, to settle, compromise or release (in whole or in part) any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's or Borrower's name, to sell, assign and deliver the Receivable (controlling stockholders or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days notice by Lender, sent by certified mail return receipt requested, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory or any other Collateral is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale.
7.3 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein).
7.4 EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS.
7.5 Notwithstanding anything contained in this Section 7 or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lender. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall be due and owing in connection with such Buyout Option. Upon the occurrence of any Default, excluding a Default pursuant to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreement.owners; or
Appears in 1 contract
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All 8.1 Borrower agrees that all of the loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at Lender's demand at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:events of default ("Default"):
(ia) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any ObligationsObligation, or shall breach any of the terms, covenants, conditions or provisions of this Agreement or any other agreement between the parties; or
(iib) if any guarantor, endorser or other person liable on the Obligations shall die, terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such person with, or in favor of, Lender; (c) if any representation, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower is false or misleading in any material respect; (d) if Borrower fails to deliver to Lender, no later than 60 days after the date hereof, or fails to maintain in effect during the term of this Agreement, an assignment of life insurance policy on the life of Jay Gelman in the face amount of not less than $1,000,000 against whxxx xxxxx are no liens, loans or claims, such assignments, policies and issuer thereof all acceptable to Lender in its sole discretion and such policies to be delivered to Lender within such 60 day period (e) if Borrower shall become insolvent, fails to pay when due indebtedness for borrowed money, breaches the terms of any lease of premises occupied by it, is generally unable to pay its debts as they mature, files or has filed against it a petition in bankruptcy, liquidation or reorganization, or if a judgment against Borrower in excess of $100,000 remains unpaid, unstayed or undismissed for a period of more than thirty (30) five days; or
(iii) , or if Borrower discontinues doing business for any reason, or if a custodian, receiver or trustee of any kind is appointed for Borrower it or any of its property.
; (cf) thirty if there is a change (by voluntary transfer, death or otherwise) in Borrower's controlling stockholders or owners (except that the merger, on or before November 30, 2004, of Borrower into Alliance Distributors Holding, Inc., a Delaware corporation ("Alliance Delaware"), shall not be a Default if immediately following such merger control of Alliance Delware continues to be held by Jay Gelman, Andre Muller and Francis Vegliante, it being understood xxxx xxxxxng xxxxxxxxx xerein xx xxxxxxxx xx ximit Lender's right to declare, as a Default, any change of control subsequent to November 30, 2004); (g) days after written if at any time Lender shall, in its sole discretion, reasonably exercised, consider the Obligations insecure or any part of the Receivables unsafe, insecure or insufficient and Borrower shall not on demand furnish other collateral or make payment on account, satisfactory to Lender; or (h) if (i) Borrower shall default under or breach the terms of any present or future lease(s) (each a "Lease") of any premises now or hereafter leased by Borrower ("Leased Premises") or (ii) Lender shall receive notice from any lessor of any Leased Premises that a default has occurred under any Lease, or that any Lease has been terminated. Upon the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the termsDefault, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties.
7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default")
(i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest a charge at the rate of three two percent (3%) per annum above the Prime Rate month upon the unpaid balance of the Funded Credit Accommodations Obligations from the date of Default until the date of full payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided thatprovided, that in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's fees (both in-house and outside) attorneys' fees, all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement or otherwise) without further notice to Borrower, to enforce payment of the any Receivables, to settle, compromise compromise, or release (in whole or in part) , any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's name or Borrower's name's, to sell, assign and deliver the Receivable Receivables (or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board board, for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days five days' notice by Lender, sent by certified mail return receipt requestedordinary mail, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory Receivables or any other Collateral security held by Lender is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale.
7.3 8.2 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein).
7.4 EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT. Lender may, THE OBLIGATIONSat all times, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS.
7.5 Notwithstanding anything contained proceed directly against Borrower to enforce payment of the Obligations and shall not be required to first enforce its rights in this Section 7 the Receivables or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, security granted to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lenderit. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall not be due and owing in connection with such Buyout Option. Upon the occurrence required to take any action of any Defaultkind to preserve, excluding a Default pursuant collect or protect its or Borrower's rights in the Receivables or any other security granted to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreementit.
Appears in 1 contract
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All 8.1 Borrower agrees that all of the loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at Lender's demand at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:
events of default (i"Default"): (a) if Borrower Borrovier shall fail to to-pay to Lender when due any amounts owing to Lender under any Obligations; or
(ii) if a judgment against Borrower in excess of $100,000 remains unpaidObligation, unstayed or undismissed for a period of more than thirty (30) days; or
(iii) if a custodian, receiver or trustee of any kind is appointed for Borrower or any of its property.
(c) thirty (30) days after written notice of the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the terms, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between the parties; (b) if any guarantor, endorser or other person-liable on the Obligations shall die, terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any.guarantee, endorsement or other agreement of such person with, or in favor of, Lender; (c) if any representation, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower is false or misleading in any material respect; (d) if Borrower shall become insolvent, is generally unable to pay its debts as they mature, files or has filed against it a petition in bankruptcy, liquidation or reorganization, or if a judgment against Borrower remains unpaid,_unstayed or undismissed for a period of more than five days, or if Borrower discontinues doing business for any reason, or if a custodian; receiver or trustee of any kind is appointed for it or any of its property; (e) if there is a change (by voluntary transfer, death or otherwise) in Borrower's controlling stockholders or owners; or (f) if at any time Lender shall, in its sole discretion, reasonably exercised, consider the Obligations insecure or any part of the Receivables unsafe, insecure or insufficient and Lender Borrower shall not on demand furnish other collateral or make payment on account, satisfactory to which Borrower and Lender are parties.
7.2 Lender. Upon the continuation after any applicable cure periods occurrence of any one or more of the events specified in Section 7.1 hereof (each a "Default")
, (i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest a charge at the rate of three two percent (3%) per annum above the Prime Rate month upon the unpaid balance of the Funded Credit Accommodations Obligations from the date of Default until the date of full payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided thatprovided, that in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's fees (both in-house and outside) attorneys' fees, all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement or otherwise) without further notice to Borrower, to enforce payment of the any Receivables, to settle, compromise compromise, or release (in whole or in part) , any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's name or Borrower's name's, to sell, assign and deliver the Receivable Receivables (or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board board, for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days five days' notice by Lender, sent by certified mail return receipt requestedordinary mail, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory Receivables or any other Collateral security held by Lender is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale.
7.3 8.2 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of waives or any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. occasion Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein). Lender may, at all times, proceed directly against Borrower to enforce payment of the Obligations and shall not be required to first enforce its rights in the Receivables or any other security granted to it. Lender shall not be required to take any action of any kind to preserve, collect or protect its or Borrower's rights in the Receivables or any other security granted to it.
7.4 EACH PARTY 8.3 BORROWER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENTAGREEtvIENT, OR THE OBLIGATIONS. IN ANY SUCH LITIGATION BORROWER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT ITS PLACE OF BUSINESS SET FORTH ABOVE_ WITHIN 30 DAYS AFTER SUCH MAILING, BORROWER SHALL APPEAR IN ANSWE1. TO SUCH SUMMONS, COMPLAINT OR OTHER PROCESS,-FAILING WHICH BORROWER SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER FOR THE AMOUNT OF THE CLAIM AND OTHER RELIEF REQUESTED THEREIN.
7.5 Notwithstanding anything contained in this Section 7 or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lender. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall be due and owing in connection with such Buyout Option. Upon the occurrence of any Default, excluding a Default pursuant to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreement.
Appears in 1 contract
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All 8.1 Borrower agrees that all of the loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at Lender's demand at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:events of default ("Default"):
(ia) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any ObligationsObligation, or shall breach any of the terms, covenants, conditions or provisions of this Agreement or any other agreement between the parties; or
(iib) if any guarantor, endorser or other person liable on the Obligations shall die (and the estate of such deceased shall not, within 45 days of the date following the death of such deceased, enter into a guaranty of the Obligations satisfactory in form and substance to Lender), terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such person with, or in favor of, Lender, (c) if any representative, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower is false or misleading in any material respect; (d) if Borrower shall become insolvent, is generally unable to pay its debts as the mature, files or has file against it a petition in bankruptcy, liquidation or reorganization, or if a judgment against Borrower in excess of $100,000 remains unpaid, unstayed or undismissed for a period of more than thirty (30) five days; or
(iii) , or if Borrower discontinues doing business for any reason, or if a custodian, receiver or trustee of any kind is appointed for Borrower it or any of its property.
; or (ce) thirty if there is a change (30by voluntary transfer, death or otherwise) days after written notice in Borrower's controlling stockholders or owners provided, however, that transfers (whether the gift, sale or testamentary bequest) between or among Xxxxxxx Xxxx, Xxxxx Xxxx or the estate of Xxxxx Xxxx shall not constitute a change in Borrower's controlling stockholders or owners for the purpose of the subsection (e); or (f) if at any time Lender shall, in its sole discretion, reasonably exercised, consider the Obligations insecure or any part of the Receivables unsafe, insecure or insufficient and Borrower shall not on demand furnish other collateral or make payment on account, satisfactory to Lender. Upon the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the termsDefault, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties.
7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default")
(i) Borrower shall pay to Lender, as liquidated damages and as part of the Obligations, interest a charge at the rate of three five percent (35%) per annum above the Prime Effective Rate upon the unpaid balance of the Funded Credit Accommodations Obligations from the date of Default until the date of full the payment of the Obligations, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided thatprovided, that in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's security interest, including attorney's reasonable attorneys' fees (both in-house and outside) at the time counsel is retained by Lender, all of which shall be added to and deemed part of the Obligationsobligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement or otherwise) without further notice to Borrower, to enforce payment of the any Receivables, to settle, compromise or compromise, "Or release (in "whole or in part) ad, any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's name or Borrower's name's, to sell, assign and deliver the Receivable Receivables (or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral thereof and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's account, at public or private sale, at broker's board board, for cash, upon credit or otherwise, at Lender's sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days five days' notice by Lender, sent by certified mail return receipt requestedordinary mail, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory Receivables or any other Collateral security held by Lender is to be made, shall be deemed 'to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence of any Default, Borrower shall assemble all or any part of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession of the Inventory and remove or dispose of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before sale.
7.3 8.2 The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, ac@ failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein).
7.4 EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT. Lender may, THE OBLIGATIONSat all times, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS.
7.5 Notwithstanding anything contained proceed directly against Borrower to enforce payment of the Obligations and shall not be required to first enforce its rights in this Section 7 the Receivables or any other provision of this Agreement, the Subordinating Creditor shall have the right, but not the obligation, security granted to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lenderit. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees or expenses of Lender shall not be due and owing in connection with such Buyout Option. Upon the occurrence required to take any action of any Defaultkind to preserve, excluding a Default pursuant collect or protect its or Borrower's rights in the Receivables or any other security granted to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreementit.
Appears in 1 contract
Samples: Financing Agreement (Adpads Inc)
LENDER'S REMEDIES UPON BORROWER'S DEFAULT. 7.1 All Borrower agrees that all of the Loans and advances made by Lender under the terms of this Agreement, together with all Obligations of Borrower as defined herein (unless otherwise provided in any instrument evidencing the same or agreement relating thereto), shall be payable by Borrower at the office of Lender in New York, New York. In addition, all Obligations shall be, at Lender's ’s option, due and payable:
(a) payable without notice or demand:
(i) if any representation, covenant, warranty, demand upon termination of this Agreement or statement of fact made by Borrower in any Transaction Document to Lender is fraudulent; or
(ii) if Borrower shall become insolvent or unable to pay its debts as they mature or fails, suspends or goes out of business, makes an assignment for the benefit of creditor's, commences a case or proceeding under any federal bankruptcy law or becomes the subject of an involuntary case or proceeding under any federal bankruptcy law that is not dismissed within sixty (60) days; or
(iii) upon the failure to effect a Trigger Cure on or before the 70th day following the Trigger Event.
(b) ten (10) days after written notice of the occurrence of any one or more of the following events:events of default (each a “Default”):
(ia) if Borrower shall fail to pay to Lender when due any amounts owing to Lender under any ObligationsObligation within five (5) days of the date such payment is due, or shall breach any of the terms, covenants, conditions or provisions of this Agreement or any other Loan Document, including, without limitation any of the terms, covenants, conditions or provisions of the General Security Agreement, and/or the Intellectual Property Security Agreement; or
provided that, in the case of a breach of any affirmative covenant herein or in any other Loan Documents, or such other breach that is of a type susceptible to being cured, Borrower shall have ten (ii10) days to remedy such breach after Borrower first becomes aware, or should have became aware, of such breach before such breach constitutes a Default; (b) if any guarantor, endorser or other person liable on the Obligations (“Third Party”) or who has pledged or granted collateral security for the Obligations, shall die, terminate its guaranty or shall breach any of the terms, covenants, conditions or provisions of any pledge, security agreement, guarantee, endorsement or other agreement of such person with, or in favor of, Lender; (c) if any representation, warranty, or statement of fact made to Lender at any time by or on behalf of Borrower or any Third Party is false or misleading in any material respect; (d) if Borrower or any Third Party shall become insolvent, is generally unable to pay its debts as they mature, files, or has filed against it, a judgment against Borrower petition in excess of $100,000 bankruptcy, liquidation or reorganization and such petition, proceeding remains unpaid, unstayed or undismissed for a period of more than thirty sixty (3060) days; or
(iii) , or if a judgment against Borrower in an amount in excess of $100,000, or if Borrower discontinues doing business for any reason, or if a custodian, receiver or trustee of any kind is appointed for Borrower it or any of its property.
property and is not removed in favor of the Borrower within sixty (c60) thirty days; (30e) days if Borrower fails to file, on a timely basis (after written giving effect to any extensions or grace periods), any reports required by the Securities and Exchange Commission or any other governmental authority having jurisdiction over Borrower, in the latter case the failure to so file would have a Material Adverse Effect; (f) if at any time Lender shall, in its reasonable judgment, consider the Obligations insecure or any part of the Receivables unsafe, insecure or insufficient and Borrower shall not, on demand, furnish other collateral or make payment on account, satisfactory to Lender; (g) if (x) Borrower shall default under or breach the terms of any present or future (x) contract or agreement to which it is a Party, or (y) any lease (each a “Lease”) of any premises now or hereafter leased by Borrower (“Leased Premises”), or Lender shall receive notice from any (x) other party under such contract or agreement, or (y) lessor of any Leased Premises that a default has occurred thereunder, and that such contract, agreement or Lease has been terminated as a result of such breach and the effect of such default, breach or termination would have a Material Adverse Effect, (h) if (x) for any reason Borrower and/or SEC does not renew the Trademark License Agreement (“XXXXX License”) dated March 26, 1999 between Borrower and the SEC or Borrower otherwise loses the right to use the trademark XXXXX®, or (y) there shall be a default (after any applicable notice, cure or grace periods) under any of the licensing agreements between (1) Borrower and any of the SEC, Zacks Investment Research, Inc. (“Zacks”), Xxxxx Federal Systems, Inc (“Xxxxx”) and any other licensor or licensee to a license agreement to which Borrower or any Guarantor is a party, or (z) Borrower loses any of its right, title and interest in the domain names set forth on Exhibit B hereto, or (2) Financial Insight Systems, Inc. and Comtex, Inc. (“Comtex”) or any other material license; provided, however, that it shall not be deemed a Default if the agreement with Xxxxx, Zacks or Comtex is terminated and is replaced with an agreement giving Borrower access to substantially similar content upon commercially reasonable terms. Upon the occurrence of any one or more of the following events: if Borrower shall breach in any material respect any of the termsDefault, covenants, conditions or provisions of this Agreement (other than those relating to failure to pay to Lender when due any amounts owing to Lender under any Obligations) or any other agreement between Borrower and Lender or to which Borrower and Lender are parties.
7.2 Upon the continuation after any applicable cure periods of any one or more of the events specified in Section 7.1 hereof (each a "Default")
(i) Borrower shall pay as compensation to LenderLender for increased credit risk, as liquidated damages and as part the Effective Rate applicable to each of the Obligations, interest at Revolving Credit and the rate of Term Loan shall automatically be increased by three percent (3%) per annum above the Prime Rate upon the unpaid balance of the Funded Credit Accommodations annum; from the date of Default and during the continuance of such Default until the date of full payment of the Obligationssuch Default is waived or cured in writing by Lender, which charge shall be in lieu of compensation payable under Section 3.1 from such date; provided thatprovided, that in no event shall such rate exceed the Maximum Rate, (ii) Borrower shall pay to Lender all reasonable costs, disbursements, charges and expenses for the collection and enforcement of the Obligations, and for the protection and enforcement of Lender's ’s security interest, including attorney's attorneys’ fees (both in-house and outside) expenses, all of which shall be added to and deemed part of the Obligations, and (iii) Lender shall have the right (in addition to any other rights Lender may have under this Agreement or otherwise) without further notice to Borrower, to enforce payment of the any Receivables, to settle, compromise compromise, or release (in whole or in part) , any amounts owing on the Receivables, to prosecute any action, suit or proceeding with respect to the Receivables, to extend the time of payment of any and all Receivables, to make allowances and adjustments with respect thereto, to issue credits in Lender's ’s name or Borrower's name’s, to sell, assign and deliver the Receivable Receivables (or any part thereof) or the Inventory (or any part thereof) or any other of the Collateral and any returned, reclaimed or repossessed merchandise or other property held by Lender or by Borrower for Lender's ’s account, at public or private sale, at broker's board ’s board, for cash, upon credit or otherwise, at Lender's ’s sole option and discretion, and Lender may bid or become purchaser at any such sale if public, free from any right of redemption which is hereby expressly waived. Borrower agrees that the giving of ten (10) days days’ notice by Lender, sent by certified mail return receipt requestedordinary mail, postage prepaid, to the mailing address of Borrower set forth in this Agreement, designating the place and time of any public sale or the time after which any private sale or other intended disposition of the Receivables, the Inventory Receivables or any other Collateral security held by Lender is to be made, shall be deemed to be reasonable notice thereof and Borrower waives any other notice with respect thereto. The net cash proceeds resulting from the exercise of any of the foregoing rights or remedies shall be applied by Lender to the payment of the Obligations in such order as Lender may elect, and Borrower shall remain liable to Lender for any deficiency. Upon the occurrence deficiency and Lender shall be liable to pay to Borrower any excess of any Default, Borrower shall assemble all or any part such cash proceeds in excess of the Inventory and make it available to Lender at a place to be designated by Lender, which is reasonably convenient to both parties. In addition, Lender may peaceably, by its own means or with judicial assistance, enter Borrower's or any other premises and take possession amount of the Inventory and remove or dispose Obligations following the indefeasible repayment in full of it on Borrower's premises and Borrower agrees that Borrower will not resist or interfere with any such action. To the full extent permitted by law, Borrower hereby expressly waives demand, notice of sale (except as herein provided), advertisement of sale and redemption before saleall Obligations.
7.3 8.1. The enumeration of the foregoing rights and remedies is not intended to be exhaustive, and such rights and remedies are in addition to and not by way of limitation of any other rights or remedies Lender may have under the New York Uniform Commercial Code or other applicable law. Lender shall have the right, in its sole discretion, to determine which rights and remedies, and in which order any of the same, are to be exercised, and to determine which Receivables are to be proceeded against and in which order, and the exercise of any right or remedy shall not preclude the exercise of any others, all of which shall be cumulative. No act, failure or delay by Lender shall constitute a waiver of any of its rights and remedies. No single or partial waiver by Lender of any provision of this Agreement, or breach or default thereunder, or of any right or remedy which Lender may have shall operate as a waiver of any other provision, breach, default, right or remedy or of the same provision, breach, default, right or remedy on a future occasion. Borrower waives presentment, notice of dishonor, protest and notice of protest of all instruments included in or evidencing any of the Obligations or the Receivables and any and all notices or demands whatsoever (except as expressly provided herein). Lender may, at all times, proceed directly against Borrower to enforce payment of the Obligations and shall not be required to first enforce its rights in the Receivables or any other security granted to it. Lender shall not be required to take any action of any kind to preserve, collect or protect its or Borrower’s rights in the Receivables or any other security granted to it provided, however, that Lender shall not commit fraud, willful misconduct or gross negligence in the exercise or failure to exercise any of its rights hereunder.
7.4 EACH PARTY 8.2. BORROWER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE CITY OF NEW YORK IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE OBLIGATIONS. IN ANY SUCH LITIGATION BORROWER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT ITS PLACE OF BUSINESS SET FORTH ABOVE. WITHIN 30 DAYS AFTER SUCH MAILING, BORROWER SHALL APPEAR IN ANSWER TO SUCH SUMMONS, COMPLAINT OR OTHER PROCESS, FAILING WHICH BORROWER SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER FOR THE AMOUNT OF THE CLAIM AND OTHER RELIEF REQUESTED THEREIN.
7.5 Notwithstanding anything contained in this Section 7 8.3. Borrower hereby agrees to indemnify Lender and hold Lender harmless from and against any liability, loss, damage, suit or any other provision proceeding ever suffered or incurred by Lender (including attorney’s fees and expenses) as a result of this AgreementBorrower’s failure to observe, the Subordinating Creditor shall have the right, but not the obligation, to purchase all (but not less than all) Obligations plus the Borrower Payables for good funds simultaneously with the exercise of this purchase option (the "Buyout Option") at any time upon reasonable notice to Lender. In connection with the exercise of the Buyout Option, Subordinating Creditor shall only be obligated to pay Lender the face amount of the Obligations plus the Borrower Payables. No additional fees perform or expenses of Lender shall be due and owing in connection with such Buyout Option. Upon the occurrence of any Default, excluding a Default pursuant to Section 7.1(a)(iii) hereof, Subordinating Creditor shall have ten (10) Business Days to exercise the Buyout Option described in this paragraph prior to Lender's exercise of any rights or remedies available to it under this Agreement or at law or under the Controlled Account Agreement. Upon the consummation of the Buyout Option by the Subordinating Creditor, Borrower shall no longer have any obligations to Lender under this Agreementdischarge Borrower’s duties hereunder.
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