Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails to perform, keep or observe any term, provision or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.
Appears in 5 contracts
Sources: Master Equity Lease Agreement, Master Equity Lease Agreement, Master Equity Lease Agreement
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement The obligations of the Guarantor hereunder are independent of and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails to perform, keep or observe any term, provision or covenant contained in Section 11 separate from the Guaranteed Obligations and the obligations of this Agreement; (c) if Lessee fails to perform, keep or observe any other termguarantor of the Guaranteed Obligations. If any of the Guaranteed Obligations are not paid when due, provision or covenant contained in this Agreement and upon any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer Event of Default or any default by Borrower as provided in any other agent of Lessor to Lessee; (d) any seizure instrument or confiscation of any Vehicle document evidencing all or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor part of Lessor of all the Guaranteed Obligations, the Agent may, at its sole election, proceed directly and at once, without notice, against the Guarantor to collect and recover the full amount or any portion of the obligations Guaranteed Obligations, without first proceeding against the Borrower or any other guarantor of Lessee the Guaranteed Obligations, or against any Collateral for the Guaranteed Obligations under this the ATSC Pledge Agreement shall or otherwise against any Collateral under other Collateral Documents.
(b) At any time after maturity of the Guaranteed Obligations, the Agent may, without notice to the Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of the Guaranteed Obligations
(i) any indebtedness due or to become due from the Agent to the Guarantor and (ii) any moneys, credits or other property belonging to the Guarantor at any time held by or coming into the possession of the Agent or any of its affiliates.
(c) The Guarantor hereby authorizes and empowers the Agent, in its sole discretion, without any notice (except notices required by law to the extent such notice as a matter of law may not be waived) or demand to the Guarantor whatsoever and without affecting the liability of the Guarantor hereunder, to exercise any right or remedy which the Agent may have available to it, including but not limited to, foreclosure by one or more judicial or nonjudicial sales, and the Guarantor hereby waives any defense to the recovery by the Agent against the Guarantor of any deficiency after such action, notwithstanding any impairment or loss of any right of reimbursement, contribution, subrogation or other right or remedy against the Borrower, or any other guarantor, maker or endorser, or against any security for the Guaranteed Obligations or for any reason cease guaranty of the Guaranteed Obligations. No exercise by the Agent of, and no omission of the Agent to be in full force exercise, any power or authority recognized herein and effect no impairment or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability suspension of any such guaranty shall be contested right or denied by remedy of the Agent against the Guarantor, any other guarantor, maker or if endorser or any guarantor security shall deny that itin any way suspend, he discharge, release, exonerate or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe otherwise affect any of the termsGuarantor's obligations hereunder or give to the Guarantor any right of recourse against the Agent, provisions the Lenders or conditions contained in the Issuing Banks.
(d) The Guarantor consents and agrees that the Agent shall not be under any such guaranty; (f) obligation to make any demand upon or pursue or exhaust any of its rights or remedies against the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee Borrower or any guarantor is in default under or fails others with respect to comply the payment of the Guaranteed Obligations, or to pursue or exhaust any of its rights or remedies with respect to any other present or future agreement with or in favor of Lessorsecurity therefor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary guaranty thereof or any security for any such guaranty, or to marshal any assets in favor of the Guarantor or against or in payment of any or all of the Guaranteed Obligations or to resort to any security or any such guaranty in any particular order, and all of its rights hereunder, under the ATSC Pledge Agreement and the other Loan Documents shall be cumulative. The ▇▇▇▇▇▇▇▇ GroupGuarantor hereby agrees to waive, Inc.. For purposes and does hereby absolutely and irrevocably waive and relinquish the benefit and advantage of, and does hereby covenant not to assert against the Agent any valuation, stay, appraisal, extension or redemption laws now existing or which may hereafter exist which, but for this provision, might be applicable to any sale made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Section 14Guaranty or the ATSC Pledge Agreement. Without limiting the generality of the foregoing, the term “guarantor” shall mean Guarantor hereby agrees that it will not invoke or utilize any present law which might cause delay in or future guarantor impede the enforcement of all the rights under this Guaranty, the ATSC Pledge Agreement or any portion of the obligations of Lessee under this Agreementother Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Anntaylor Inc), Guaranty (Anntaylor Inc)
Default Remedies. The following shall constitute events of default (“"Events of Default”") by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails to perform, keep or observe any term, provision or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business condition, a going concern audit comment of Lessee or any guarantor, or if Lessee admits that it cannot pay its debts as they become due, makes an assignment for the benefit of creditors, is the subject of a voluntary or involuntary petition for bankruptcy, is adjudged insolvent or bankrupt, or a receiver or trustee is appointed for any portion of Lessee's assets or property; (g) if more than one (1) payment by Lessee to Lessor is returned by Lessee's bank for any reason within a twelve (12) month period; or (gh) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ GroupServicer of Lessor, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ GroupServicer of Lessor, Enterprise Holdings, Inc. or a subsidiary or affiliate of Enterprise Holdings, Inc.. For purposes of this Section 14, the term “"guarantor” " shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.. Upon the occurrence of any Event of Default, Lessor, without notice to Lessee, will have the right to exercise concurrently or separately (and without any election of remedies being deemed made), the following remedies: (a) Lessor may demand and receive immediate possession of any or all of the Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; if Lessee fails to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term), Lessor, Servicer, any other agent of Lessor and any of Lessor's independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles; (b) Lessor may enforce performance by Lessee of its obligations under this Agreement;
Appears in 2 contracts
Sources: Master Equity Lease Agreement, Master Equity Lease Agreement
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails Tenant covenants as a material part of the consideration for this Lease to pay when due keep and perform each and all of said terms, covenants, and conditions by Tenant to be kept and performed and that this Lease is made upon the condition of such performance. The occurrence of any rent one or other amount due more of the following events shall constitute a material default and breach of this Lease by Tenant:
(i) Vacation or abandonment of the Premises
(ii) Failure by Tenant to make any payment required of Tenant under this Agreement Lease as and when due
(iii) Failure by Tenant to observe or perform any such failure shall remain unremedied of the covenants, conditions or provisions of this Lease, other than the making of any payment.
(iv) The making by Tenant (or any guarantor of Tenant's obligations under this Lease) of any general assignment or general arrangement for ten the benefit of creditors', the filing by or against Tenant (10or any guarantor of Tenant's obligations under this Lease) of a petition in bankruptcy, including reorganization or arrangement, unless, in the case of a petition filed against Tenant (or a guarantor), the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of 'enant's assets located at the premises or of Tenant's interest in this Lease.
(b) With respect to a default occurring under subparagraph (a)(ii) above, Tenant shall have five (5) days following receipt of written notice from Landlord within which to cure any such default. With respect to a default arising under subparagraph (a)(iii) above, Tenant shall have twenty (20) days following receipt of written notice from Landlord within which to cure any such default; provided, if Lessee fails the nature of the default is such that the same cannot reasonably be cured within such twenty (20) day period, the cure period shall be extended for so long as may be reasonably necessary to performcure the default (but for no more than an additional sixty (60) days) if (i) Tenant commences the cure within the initial twenty (20) day period, keep and thereafter diligently prosecutes the cure to completion in good faith; and (ii) Tenant furnishes Landlord with such assurances and indemnities as Landlord may reasonably require to insure completion thereof and fully and completely protect Landlord from any loss or observe liability resulting from any termsuch default or any delay by Tenant in curing the default. The notice periods provided for above shall include, provision but not be in addition to, any notice periods otherwise required by RCW 59.12, as now or covenant contained hereafter amended, or any legislation in Section 11 of this Agreement; substitution thereof.
(c) In the event of any such material default or breach not cured within the applicable cure period, if Lessee any, Landlord may at any time, without waiving or limiting any other right or remedy reenter and take possession of the Premises, terminate this Lease and/or pursue any remedy allowed by law. In the event of any entry or taking possession of the Premises by Landlord, Landlord shall have the right but not the obligation to remove therefrom all or any part of the personal property of Tenant located therein and may place the same in storage in a public warehouse at the cost and risk of Tenant. If Landlord elects to reenter the Premises and terminate this Lease, Landlord may recover from Tenant as damages the following: (i) the worth at the time of award of any unpaid rental which had been earned at the time of such termination; plus (ii) the worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment approximately caused by Tenant's failure to perform its obligations under this Lease, including but not limited to any costs or expenses incurred by Landlord in (a) retaking possession of the Premises, including attorneys' fees and costs, (b) maintaining or preserving the Premises after Tenant's default, (c) preparing the Premises for reletting to a new tenant, including reasonable repairs or alterations to the Premises for such reletting, (d) leasing commissions and (e) any other costs necessary or appropriate to relet the Premises; plus (v) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by the laws of the State of Washington. As used in item (i) and (ii) above, "worth at the time of award" is computed by allowing interest at the interest rates specified in Paragraph 36 below. As used in item (iii) above, the "worth at the time of award" is computed by using the discount rate of six percent (6%).
(d) Landlord shall not be in default unless Landlord fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty perform its obligations within twenty (3020) days after written notice thereof by Tenant specifying wherein Landlord has failed to perform; provided that if the nature of Landlord's obligation is given by Lessorsuch that more than twenty (20) days are required for performance, Servicer or any other agent Landlord shall not be in default if Landlord commences performance within twenty (20) days of Lessor Tenant's notice and thereafter completes Landlord's performance within a reasonable time. Tenant shall look solely to Lessee; (d) any seizure or confiscation the rents, issues and profits of Landlord from the Building for the satisfaction of any Vehicle judgment or decree against Landlord, whether for breach of the terms of this Lease or created by statute or under common law. No other property or assets of Landlord shall be subject to levy, execution or other enforcement procedures for satisfaction of any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); judgment or decree in favor of Tenant.
(e) if If Landlord retakes possession, Landlord shall have the right to let any present other available space in the Building before reletting or future guaranty in favor of Lessor of all or any portion of attempting to relet the obligations of Lessee under this Agreement Premises and such action. shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability not relieve Tenant of any such guaranty shall be contested or denied of its obligations hereunder All remedies provided herein are cumulative and are in addition to those provided by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; law.
(f) the occurrence of a material adverse change in the financial condition or business of Lessee or Landlord may, but shall not be obligated to, cure, at any guarantor; or (g) if Lessee or time, without notice, any guarantor is in default under or fails failure by Tenant to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee perform under this AgreementLease and whenever Landlord so elects, all costs and expenses incurred by Landlord in curing such failure including, without limitation, reasonable attorneys' fees, together with interest on the amount of costs and expenses so incurred at the interest rate set forth in Paragraph 36 below, shall be paid by Tenant to Landlord on demand, and shall be recoverable, as additional rent, by Landlord.
Appears in 1 contract
Sources: Office Lease (Pacifica Bancorp Inc)
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due If an Event of Default exists, the Administrative Agent may exercise all of the rights and remedies of a secured party under the Code and all of the rights and remedies conferred in this Agreement and in each of the other Facility Documents, it being expressly understood that no such remedy is intended to be exclusive of any such failure other remedy or remedies; but each and every remedy shall remain unremedied for be cumulative and shall be in addition to every other remedy given in this Agreement or now or hereafter existing at law or in equity or by statute, and may be exercised from time to time as often as may be deemed expedient by the Administrative Agent.
(b) If an Event of Default exists, the Administrative Agent shall have the right, at any time or from time to time, to sell any or all of the Collateral.
(c) The Individual Guarantor and the Administrative Agent agree that ten (10) days; ' notice to the Individual Guarantor of any public or private sale or other disposition of Collateral shall be reasonable notice thereof, and such sale shall be at such reasonable locations as the Administrative Agent shall designate in such notice. Any other requirement of notice, demand or advertisement for sale is, to the extent permitted by law, waived by the Individual Guarantor. Sales for cash, or on credit to a wholesaler, retailer or user of the Collateral, at any public or private sale are all hereby deemed (bwithout limitation) if Lessee fails to perform, keep or observe any term, provision or covenant contained be commercially reasonable (as defined in Section 11 of this Agreement; (c) if Lessee fails the Code). The Administrative Agent shall have the right to perform, keep or observe any other term, provision or covenant contained in this Agreement and bid at any such failure sale on behalf of any one or more Lenders (who shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or also have the right to bid individually). Proceeds arising from any other agent of Lessor to Lessee; such sale shall be applied in the manner set forth in the Credit Agreement.
(d) any seizure If an Event of Default exists, the Administrative Agent may also, with or confiscation of any Vehicle without proceeding with sale or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present foreclosure or future guaranty in favor of Lessor of all or any portion demanding payment of the Guarantied Obligations, without notice, appropriate and apply to the payment of the Guarantied Obligations and the other obligations of Lessee secured under this Agreement shall at any time for and all Collateral in its possession and any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.balances,
Appears in 1 contract
Sources: Cash Collateral Account Agreement (LCC International Inc)
Default Remedies. The following shall constitute events of default In the event (“Events of Default”i) by Lessee under this Agreement: (a) if Lessee the Maker fails to pay make any payment when due any rent or other amount due under this Agreement and note or under any such failure shall remain unremedied for ten other notes or obligations of the Maker to the Lender, or (10ii) days; (b) if Lessee fails to perform, keep the Maker or observe any term, provision endorser or covenant contained in Section 11 guarantor of this Agreement; note shall be adjudged a bankrupt, or file a petition in bankruptcy, or have a petition filed against them, or (ciii) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer the Maker or any other agent endorser or guarantor of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty this note shall, in favor of Lessor of all or any portion the sole opinion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdictionLender, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of experience a material adverse change in its, his or her financial condition, or (iv) a writ or order of attachment or garnishment shall be issued or made against any property of the financial condition or business of Lessee Maker or any guarantor; endorser or guarantor of this note, or (gv) if Lessee of dissolution, termination of existence, or material change in the ownership of the Maker of any endorser or guarantor of this note, or (vi) the Maker or any endorser or guarantor is in default under or of this note fails to comply with any provide financial statements or other present financial information on a timely basis when reasonably requested by the Lender, or future agreement with or (vii) the Bank in favor of Lessor, The ▇good faith deems itself insecure wit▇ ▇▇▇▇▇▇▇ Group▇o repayment of this note, Inc. or in good faith believes that the prospect of payment is impaired, or (viii) of the death of any Maker or any direct endorser or indirect guarantor of this note, or (ix) the Maker or any endorser or Guarantor of this Note shall default under or breach this Note, any other note, loan agreement, warranty or other agreement with Lender, then in any such case, (a) the Lender may terminate any obligation of the Lender to make further advances under this note, and (b) the entire unpaid principal balance of and all accrued interest on this note and/or all liabilities of the Maker to the Lender shall be considered to be in default and, at the Lender's option, forthwith become due and payable without demand or notice, and the Lender may sell at public or private sale any or all of the property securing this note, or substitutes therefor or additions thereto, and if such sale be public, the Lender may purchase such property or any part thereof. The proceeds of any sale made hereunder, after deducting any expense incident to said sale, together with the cost of handling said property, may be applied by the Lender, as it shall deem proper, to any one or more or all of the liabilities of the Maker to the Lender, whether such liabilities are due or not, and the balance of said proceeds, if any, shall be returned to the Maker. If any Maker is a corporation, partnership, limited partnership, limited liability company or any other type of business entity, the happening of any of the following events without the Lender's prior written consent shall render this note in default and, at the option of the Lender, immediately due and payable without demand or notice: (1) a merger or consolidation of the Maker or any subsidiary of The ▇▇▇▇▇▇▇▇ Groupthe Maker with or into any corporation or other legal entity, Inc.. For purposes or a merger or consolidation of this Section 14one or more other such entities with or into the Maker; (2) the sale, the term “guarantor” shall mean any present lease, transfer or future guarantor other disposition of all or any portion substantial part of the assets of the Maker, whether now owned or hereafter acquired; (3) an acquisition by the Maker of all or substantially all of the assets or outstanding capital stock of any other business entity; or (4) any one or more transfers, sales or other dispositions of shares of any class of stock of the Maker by shareholders on the date of this note, or the issuance by Maker on one or more occasions of shares of any class of stock of the Maker to persons not shareholders of the Maker on the date of this note, which in the aggregate would cause 50% or more of the then outstanding shares of such class of stock to be owned by persons other than one of the shareholders of the Maker on the date of this note. Failure of the holder of this note to exercise any of its rights and remedies shall not constitute a waiver of any provision of this note, or of any security agreement, instrument or document (including without limitation any guaranty) securing Maker's obligations of Lessee under this Agreementnote, or of any such holder's rights and remedies, nor shall it prevent the holder from exercising any rights or remedies with respect to the subsequent happening of the same or similar occurrences. All remedies of the holder hereof shall be cumulative to the greatest extent permitted by law.
Appears in 1 contract
Sources: Loan Agreement (In House Rehab Corp)
Default Remedies. The Guarantor shall be in default hereunder in the event that any of the following shall constitute events of default (“Events each an "Event of Default”") by Lessee under this Agreement: shall occur or exist:
(a) if Lessee fails to pay when due Any representation or warranty made by the Guarantor, or any rent of its officers, herein, or other amount due under this Agreement and in any such failure written statement or certificate furnished at any time in connection herewith, shall remain unremedied for ten (10) days; prove untrue in any material respect as of the date it was made, or
(b) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any termobligation, provision covenant, agreement, or covenant contained undertaking of Guarantor set forth in Section 11 of this Agreement; Sections 3, 9.5, 9.8, 9.13, 9.14 and/or 9.15 hereof, or
(c) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any obligation, covenant, agreement, or undertaking of Guarantor set forth in any section or provision hereof other term, provision or covenant contained than those identified specifically in this Agreement subsection (b) above and any Guarantor shall not have corrected such failure shall remain unremedied for within thirty (30) days after the giving of written notice thereof is given to Guarantor by Lessor, Servicer Agent or any other agent of Lessor Bank that the specified failure is to Lessee; be corrected, or
(d) Guarantor and/or any seizure Restricted Subsidiary defaults in any payment of principal or confiscation interest due and owing upon any obligation for borrowed money or, in the case of the Guarantor, in the payment or performance of any Vehicle obligation permitted to be outstanding or incurred pursuant to Sections 9.10 and/or 9.12 hereof, beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which any such obligation is created, if the effect of such default is to accelerate the maturity of the related indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to its stated maturity or foreclose on any lien on property of Guarantor securing the same, except that defaults in payment or performance of non-recourse obligations of Guarantor or any other act Restricted Subsidiary shall not constitute Events of Default under this Section 10(d) unless such defaults have, or individually or in the aggregate, a material adverse effect on the business or financial condition of Guarantor, or
(other than i) any Restricted Subsidiary shall (A) generally not pay its debts as such debts become due, or (B) make a Casualty Occurrencegeneral assignment for the benefit of creditors, or (C) otherwise rendering any Vehicle unsuitable apply for use (as determined by Lessor); (e) if any present or future guaranty in favor consent to the appointment of Lessor a receiver, a custodian, a trustee, an interim trustee or liquidator of itself or all or any portion a substantial part of its assets, or (D) be adjudicated a debtor or have entered against it an order for relief under Title 11 of the obligations United States Code, as the same may be amended from time to time, or (E) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of Lessee under this Agreement shall at any time other law (whether federal or state) relating to relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding (whether federal or state) relating to relief of debtors, or (F) suffer or permit to continue unstayed and in effect for thirty (30) consecutive days any reason cease to be in full force and effect judgment, decree or shall be declared to be null and void order, entered by a court of competent jurisdiction, which approves a petition seeking its reorganization or if the validity appoints a receiver, custodian, trustee, interim trustee or enforceability liquidator of any such guaranty shall be contested itself or denied by any guarantorof all or a substantial part of its assets, or (G) take or omit to take any other action in order thereby to effect any of the foregoing or (H) fail to pay and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon it or its income, profits, or properties, and/or all lawful claims for labor, materials, and supplies, which, if any guarantor unpaid, might become a lien or charge against such properties, in all cases before the same shall deny that itbecome in default, he or she has any further liability or obligation under any such guaranty or if any guarantor shall (I) fail to comply with any and all Environmental Laws applicable to such Subsidiary, its properties, or observe activities, or (J) fail to observe, perform, or fulfill any of the termsits obligations, provisions covenants or conditions contained in any evidence of indebtedness or other contract, decree, order, judgment, or instrument to which such guaranty; Subsidiary is a party or by which it or its assets are bound, and (ii) any such event or events described in (i) above shall in the reasonable judgment of the Banks have a material adverse effect on the business or financial condition of the Guarantor, or
(f) An Event of Default specified in Article X of the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or Agreement shall have occurred and be continuing, or
(g) if Lessee The Guarantor shall (i) make a general assignment for the benefit of creditors, (ii) file a voluntary petition under any chapter or provision of Title 11 United States Code (Bankruptcy), as from time to time in effect (the "Bankruptcy Code") or a petition or answer seeking reorganization of the Guarantor or a readjustment of its indebtedness under the Bankruptcy Code or any guarantor is other federal or state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, (iii) consent to the appointment of a receiver or trustee of its properties, or (iv) cease to be or be unable to pay its debts generally as they become due, or
(h) Relief shall be ordered against Guarantor as debtor in default any involuntary case under the Bankruptcy Code, or fails to comply with a petition or proceedings for bankruptcy or for reorganization shall be filed against Guarantor under the Bankruptcy Code or any other present federal or future agreement state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, and Guarantor shall admit the material allegations thereof, or in favor of Lessoran order, The ▇▇▇▇▇▇▇▇ Group, Inc. judgment or any direct decree entered therein shall not be vacated or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.stayed within
Appears in 1 contract
Sources: Guaranty of Payment of Debt (Forest City Enterprises Inc)
Default Remedies. The Guarantor shall be in default hereunder in the event that any of the following shall constitute events of default (“Events each an "Event of Default”") by Lessee under this Agreement: shall occur or exist:
(a) if Lessee fails to pay when due Any representation or warranty made by the Guarantor, or any rent of its officers, herein, or other amount due under this Agreement and in any such failure written statement or certificate furnished at any time in connection herewith, shall remain unremedied for ten (10) days; prove untrue in any material respect as of the date it was made, or
(b) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any termobligation, provision covenant, agreement, or covenant contained undertaking of Guarantor set forth in Section 11 of this Agreement; Sections 3, 9.5, 9.8, 9.13, 9.14 and/or 9.15 hereof, or
(c) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any obligation, covenant, agreement, or undertaking of Guarantor set forth in any section or provision hereof other term, provision or covenant contained than those identified specifically in this Agreement subsection (b) above and any Guarantor shall not have corrected such failure shall remain unremedied for within thirty (30) days after the giving of written notice thereof is given to Guarantor by Lessor, Servicer Agent or any other agent of Lessor Bank that the specified failure is to Lessee; be corrected, or
(d) Guarantor and/or any seizure Restricted Subsidiary defaults in any payment of principal or confiscation interest due and owing upon any obligation for borrowed money or, in the case of the Guarantor, in the payment or performance of any Vehicle obligation permitted to be outstanding or incurred pursuant to Sections 9.10 and/or 9.12 hereof, beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which any such obligation is created, if the effect of such default is to accelerate the maturity of the related indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to its stated maturity or foreclose on any lien on property of Guarantor securing the same, except that defaults in payment or performance of non-recourse obligations of Guarantor or any other act (other than Restricted Subsidiary shall not constitute Events of Default under this Section 10(d) unless such defaults have, individually or in the aggregate, a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)material adverse effect on the business or financial condition of Guarantor; (e) provided that it shall be an Event of Default hereunder if any present default occurs (after giving effect to any applicable grace period) under the Senior Notes permitted by Section 9.10(h) of this Guaranty or future guaranty in favor under the Indenture, or
(i) any Restricted Subsidiary shall (A) generally not pay its debts as such debts become due, or (B) make a general assignment for the benefit of Lessor creditors, or (C) apply for or consent to the appointment of a receiver, a custodian, a trustee, an interim trustee or liquidator of itself or all or any portion a substantial part of its assets, or (D) be adjudicated a debtor or have entered against it an order for relief under Title 11 of the obligations United States Code, as the same may be amended from time to time, or (E) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of Lessee under this Agreement shall at any time other law (whether federal or state) relating to relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding (whether federal or state) relating to relief of debtors, or (F) suffer or permit to continue unstayed and in effect for thirty (30) consecutive days any reason cease to be in full force and effect judgment, decree or shall be declared to be null and void order, entered by a court of competent jurisdiction, which approves a petition seeking its reorganization or if the validity appoints a receiver, custodian, trustee, interim trustee or enforceability liquidator of any such guaranty shall be contested itself or denied by any guarantorof all or a substantial part of its assets, or (G) take or omit to take any other action in order thereby to effect any of the foregoing or (H) fail to pay and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon it or its income, profits, or properties, and/or all lawful claims for labor, materials, and supplies, which, if any guarantor unpaid, might become a lien or charge against such properties, in all cases before the same shall deny that itbecome in default, he or she has any further liability or obligation under any such guaranty or if any guarantor shall (I) fail to comply with any and all Environmental Laws applicable to such Subsidiary, its properties, or observe activities, or (J) fail to observe, perform, or fulfill any of the termsits obligations, provisions covenants or conditions contained in any evidence of indebtedness or other contract, decree, order, judgment, or instrument to which such guaranty; Subsidiary is a party or by which it or its assets are bound, and (ii) any such event or events described in (i) above shall in the reasonable judgment of the Banks have a material adverse effect on the business or financial condition of the Guarantor, or
(f) An Event of Default specified in Article X of the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or Agreement shall have occurred and be continuing, or
(g) if Lessee The Guarantor shall (i) make a general assignment for the benefit of creditors, (ii) file a voluntary petition under any chapter or provision of Title 11 United States Code (Bankruptcy), as from time to time in effect (the "Bankruptcy Code") or a petition or answer seeking reorganization of the Guarantor or a readjustment of its indebtedness under the Bankruptcy Code or any guarantor is other federal or state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, (iii) consent to the appointment of a receiver or trustee of its properties, or (iv) cease to be or be unable to pay its debts generally as they become due, or
(h) Relief shall be ordered against Guarantor as debtor in default any involuntary case under the Bankruptcy Code, or fails to comply with a petition or proceedings for bankruptcy or for reorganization shall be filed against Guarantor under the Bankruptcy Code or any other present federal or future agreement state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, and Guarantor shall admit the material allegations thereof, or an order, judgment or decree entered therein shall not be vacated or stayed within thirty (30) days of its entry, or a receiver or trustee shall be appointed for the Guarantor or its properties or any part thereof and remain in possession thereof for thirty (30) days, or
(i) The Parent defaults in the performance of any obligation in the Subordination Agreement or in favor the performance of Lessorany other agreement, The ▇▇▇▇▇▇▇▇ Groupcovenant, Inc. term or condition in the Subordination Agreement, then, in any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Groupsuch event, Inc.. For purposes of this Section 14and at any time thereafter, the term “guarantor” shall mean Agent and/or the Required Banks may at their option, by written notice delivered or mailed to the Guarantor, do any present one or future guarantor of all or any portion more of the obligations following: (a) declare the Debt to be immediately due and payable, and upon any such declaration such indebtedness shall become and be forthwith due and payable by Guarantor without any further notice, presentment, or demand of Lessee any kind, all of which are expressly waived by the Guarantor, or (b) require the Guarantor to purchase the Debt at par value, without recourse, within ten (10) days after such notice, by paying to the Agent, in immediately available U.S. funds, an amount equal to the unpaid principal amount then outstanding on the Notes and any other matured or unmatured Debt owing to the Banks, plus the unpaid accrued interest on the Notes at the rate or rates determined in accordance with the Agreement. The foregoing rights, powers, and remedies of the Agent and the Banks are not exclusive and are in addition to any and all other rights, powers, and remedies provided for hereunder (including, without limitation, under this AgreementSection 13 hereof), at law, and/or in equity. The exercise by the Agent and/or the Banks of any right, power, or remedy shall not waive or preclude the exercise of any other rights, powers, and/or remedies.
Appears in 1 contract
Sources: Guaranty of Payment of Debt (Forest City Enterprises Inc)
Default Remedies. The Each of the following shall will constitute events of a default (“Events of Default”) by Lessee under this Agreementhereunder: (a) if Lessee fails to pay rent within five (5) days from and after the date such payment of rent is due and payable or Lessee fails to pay any other amount when due under any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) daysSchedule; (b) if Lessee fails to performmaintain the insurance required hereunder or breaches any other term, keep provision, obligation or covenant hereof (including without limitation any Schedule) or commits any other act of default specified in this Lease; (c) any representation or warranty of Lessee contained herein or in any other document or instrument delivered in connection herewith or made from time to time hereafter is false or misleading when made; (d) Lessee or any guarantor, surety, endorser or pledgor of property given to secure Lessee's obligations hereunder ("Guarantor") becomes insolvent, ceases to do business as a going concern, or transfers or sells all or substantially all of its assets without the prior written consent of Lessor; (e) the Equipment or any Item is abused, illegally used, or misused; (f) the death, dissolution, merger, consolidation or reorganization of Lessee or any Guarantor; (g) Lessee or any Guarantor makes any assignment for the benefit of creditors, or if a petition in bankruptcy, reorganization, insolvency, receivership or the like is filed with respect to Lessee or any Guarantor or property of Lessee or any Guarantor is attached or a receiver, trustee or liquidator is appointed for Lessee or any Guarantor or any of Lessee's or Guarantor's property or whenever Lessor may deem itself insecure hereunder; (h) the transfer of more than a 25% ownership interest in Lessee or any Guarantor by shareholders, partners, members or proprietors thereof in any year without Lessor's prior written consent, (i) Lessee or any Guarantor (x) incurs any accumulated funding deficiency within the meaning of the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations thereunder, equal to 5% of Lessee's consolidated tangible net worth (as defined by generally accepted accounting principles), or (y) incurs any liability of comparable size to the pension Benefit Guaranty Corporation, (j) Lessee or any material subsidiary or any Guarantor fails to comply with the provisions of the Fair Labor Standards Act of 1938, as amended, (k) Lessee or any Guarantor fails to pay or perform or observe any term, provision covenant, agreement or covenant condition contained in Section 11 of this Agreement; (c) if Lessee fails to performin, keep or observe there shall occur any payment or other default under or as defined in, any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer agreement applicable to Lessee or any other agent of Lessor to Lessee; (d) any seizure Guarantor or confiscation of any Vehicle by which Lessee or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use Guarantor is bound (as determined by Lessor); (eused herein, an "Other Agreement") if any present involving a liability, indebtedness or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or performance obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Guarantor with a potential liability to Lessee or any guarantor Guarantor in an amount equal to or in excess of $50,000, which shall not be remedied within the period of time (if any) within which such Other Agreement permits such default to be remedied, regardless of whether such default (i) is in default under or fails to comply with waived by any other present party to such Other Agreement or future agreement with (ii) produces or results in favor the cancellation of Lessorsuch Other Agreement or the acceleration of such liability, The ▇▇▇▇▇▇▇▇ Group, Inc. indebtedness or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.other obligation;
Appears in 1 contract
Default Remedies. The Guarantor shall be in default hereunder in the event that any of the following shall constitute events of default (“Events each an "Event of Default”") by Lessee under this Agreement: shall occur or exist:
(a) if Lessee fails to pay when due Any representation or warranty made by the Guarantor, or any rent of its officers, herein, or other amount due under this Agreement and in any such failure written statement or certificate furnished at any time in connection herewith, shall remain unremedied for ten (10) days; prove untrue in any material respect as of the date it was made, or
(b) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any termobligation, provision covenant, agreement, or covenant contained undertaking of the Guarantor set forth in Section 11 of this Agreement; Sections 3, 9.5, 9.8, 9.13, 9.14 and/or 9.15 hereof, or
(c) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any obligation, covenant, agreement, or undertaking of the Guarantor set forth in any section or provision hereof other term, provision or covenant contained than those identified specifically in this Agreement subsection (b) above and any the Guarantor shall not have corrected such failure shall remain unremedied for within thirty (30) days after the giving of written notice thereof is given to the Guarantor by Lessor, Servicer the Agent or any other agent of Lessor Bank that the specified failure is to Lessee; be corrected, or
(d) The Guarantor and/or any seizure Restricted Subsidiary defaults in any payment of principal or confiscation interest due and owing upon any Indebtedness in excess of $1,000,000, or, in the case of the Guarantor, in the payment or performance of any Vehicle obligation permitted to be outstanding or incurred pursuant to Sections 9.10 and/or 9.12 hereof in excess of $1,000,000, beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which any such obligation is created, if the effect of such default is to accelerate the maturity of the related Indebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity or foreclose on any lien on property of the Guarantor securing the same, except that defaults in payment or performance of non-recourse obligations of the Guarantor or any other act (other than Restricted Subsidiary shall not constitute Events of Default under this Section 10(d) unless such defaults have, individually or in the aggregate, a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)material adverse effect on the business or financial condition of the Guarantor; (e) PROVIDED, that it shall be an Event of Default hereunder if any present default occurs (after giving effect to any applicable grace period) under the Senior Notes permitted by Section 9.10(h) of this Guaranty or future guaranty in favor under the Indenture, or
(i) any Restricted Subsidiary shall (A) generally not pay its debts as such debts become due, or (B) make a general assignment for the benefit of Lessor creditors, or (C) apply for or consent to the appointment of a receiver, a custodian, a trustee, an interim trustee or liquidator of itself or all or any portion a substantial part of its assets, or (D) be adjudicated a debtor or have entered against it an order for relief under Title 11 of the obligations United States Code, as the same may be amended from time to time, or (E) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of Lessee under this Agreement shall at any time other law (whether federal or state) relating to relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding (whether federal or state) relating to relief of debtors, or (F) suffer or permit to continue unstayed and in effect for thirty (30) consecutive days any reason cease to be in full force and effect judgment, decree or shall be declared to be null and void order, entered by a court of competent jurisdiction, which approves a petition seeking its reorganization or if the validity appoints a receiver, custodian, trustee, interim trustee or enforceability liquidator of any such guaranty shall be contested itself or denied by any guarantorof all or a substantial part of its assets, or (G) take or omit to take any other action in order thereby to effect any of the foregoing or (H) fail to pay and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon it or its income, profits, or properties, and/or all lawful claims for labor, materials, and supplies, which, if any guarantor unpaid, might become a lien or charge against such properties, in all cases before the same shall deny that itbecome in default, he or she has any further liability or obligation under any such guaranty or if any guarantor shall (I) fail to comply with any and all Environmental Laws applicable to such Subsidiary, its properties, or observe activities, or (J) fail to observe, perform, or fulfill any of the termsits obligations, provisions covenants or conditions contained in any evidence of Indebtedness or other contract, decree, order, judgment, or instrument to which such guaranty; Subsidiary is a party or by which it or its assets are bound, and (ii) any such event or events described in (i) above shall in the reasonable judgment of the Banks have a material adverse effect on the business or financial condition of the Guarantor, or
(f) An Event of Default specified in Article X of the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or Agreement shall have occurred and be continuing, or
(g) if Lessee The Guarantor shall (i) make a general assignment for the benefit of creditors, (ii) file a voluntary petition under any chapter or provision of Title 11 United States Code (Bankruptcy), as from time to time in effect (the "Bankruptcy Code") or a petition or answer seeking reorganization of the Guarantor or a readjustment of its Indebtedness under the Bankruptcy Code or any guarantor is other federal or state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, (iii) consent to the appointment of a receiver or trustee of its properties, or (iv) cease to be or be unable to pay its debts generally as they become due, or
(h) Relief shall be ordered against the Guarantor as debtor in default any involuntary case under the Bankruptcy Code, or fails to comply with a petition or proceedings for bankruptcy or for reorganization shall be filed against the Guarantor under the Bankruptcy Code or any other present federal or future agreement state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, and the Guarantor shall admit the material allegations thereof, or an order, judgment or decree entered therein shall not be vacated or stayed within thirty (30) days of its entry, or a receiver or trustee shall be appointed for the Guarantor or its properties or any part thereof and remain in possession thereof for thirty (30) days, or
(i) The Guarantor defaults in the performance of any obligation in the Subordination Agreement or in favor the performance of Lessorany other agreement, The ▇▇▇▇▇▇▇▇ Groupcovenant, Inc. term or condition in the Subordination Agreement, then, in any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Groupsuch event, Inc.. For purposes of this Section 14and at any time thereafter, the term “guarantor” shall mean Agent and/or the Required Banks may at their option, by written notice delivered or mailed to the Guarantor, do any present one or future guarantor of all or any portion more of the obligations following: (a) declare the Debt to be immediately due and payable, and upon any such declaration such Debt shall become and be forthwith due and payable by Guarantor without any further notice, presentment, or demand of Lessee any kind, all of which are expressly waived by the Guarantor, or (b) require the Guarantor to purchase the Debt at par value, without recourse, within ten (10) days after such notice, by paying to the Agent, in immediately available U.S. funds, an amount equal to the unpaid principal amount then outstanding on the Notes and any other matured or unmatured Debt owing to the Banks, plus the unpaid accrued interest on the Notes at the rate or rates determined in accordance with the Agreement. The foregoing rights, powers, and remedies of the Agent and the Banks are not exclusive and are in addition to any and all other rights, powers, and remedies provided for hereunder (including, without limitation, under this AgreementSection 13 hereof), at law, and/or in equity. The exercise by the Agent and/or the Banks of any right, power, or remedy shall not waive or preclude the exercise of any other rights, powers, and/or remedies.
Appears in 1 contract
Sources: Guaranty of Payment of Debt (Forest City Enterprises Inc)
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if As used herein, the term "Default" means any of the following events: (i) Lessee fails to pay when due any rent Rent or other amount due under this Agreement and any such failure a Lease within ten days after the same shall remain unremedied for ten (10) dayshave become due; (bii) if Lessee or any Guarantor becomes insolvent or makes an assignment for the benefit of its creditors; (iii) a receiver, trustee, conservator or liquidator of Lessee or any Guarantor of all or a substantial part of Lessee's or such Guarantor's assets is appointed with or without the application or consent of Lessee or such Guarantor, respectively; (iv) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar law; (v) Lessee or any Guarantor violates or fails to perform, keep or observe perform any term, provision or covenant contained in Section 11 of either this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer Lease or any other agent of loan, lease or credit agreement or any acquisition or purchase agreement with Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)party; (evi) if any present warranty or future guaranty in favor of Lessor of all representation made by Lessee herein proves to have been false or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guarantymisleading when made; (fvii) the occurrence of there is a material adverse change in the Lessee's or any Guarantor's financial condition or business of since the related Rent Commencement Date; (viii) Lessee or any guarantorGuarantor merges or consolidates with any other corporation or entity, or sells, leases or disposes of all or substantially all of its assets without the prior written consent of Lessor; (ix) Lessee or any Guarantor, if an individual, dies or, if not an individual, is dissolved; or (gx) if any filing by Lessee or of a termination statement for any guarantor is in default financing statement filed by Lessor while any obligations are owed by Lessee under or fails a Lease. A Default with respect to comply with any Lease shall, at Lessor's option, constitute a Default for all Leases and any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreementagreements between Lessor and Lessee.
Appears in 1 contract
Default Remedies. 9.1 It is agreed that time for the payment of the above Rent and any other charges and all other references as to time or duties in this Lease are of the essence of this Agreement. The occurrence of any of the following shall constitute events of a default hereunder:
9.1.1 Lessee or any guarantor hereof (“Events of Default”hereinafter "Guarantor") by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due obligation under this Agreement or under any guaranty or other related document, or otherwise breaches any provision contained herein or therein, and any such failure shall remain unremedied or breach continues for ten (10) days; (b) if Lessee fails to perform;
9.1.2 Any warranty, keep or observe any term, provision representation or covenant of Lessee or of any Guarantor contained herein, or in Section 11 any guaranty, certificate, financial statement or other related document, whether made or furnished to Lessor by or on behalf of this Agreement; (c) if Lessee, proves to be false or incorrect at any time;
9.1.3 Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any Guarantor becomes insolvent, ceases to do business as a going concern, or becomes unable to pay its debts generally as they become due; or a petition for an order for relief under the bankruptcy laws or insolvency laws or for reorganization, composition, adjustment or other agent relief of Lessor to Lessee; (d) debtors under any seizure law is filed by or confiscation of any Vehicle against Lessee or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)Guarantor; (e) if any present or future guaranty in favor of Lessor of all Lessee or any portion Guarantor makes an assignment for the benefit of the obligations of creditors or a receiver or liquidator is appointed for Lessee under this Agreement shall at or any time for Guarantor; or any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, jurisdiction orders the winding up or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any liquidation of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business affairs of Lessee or any guarantor; Guarantor;
9.1.4 The Equipment is lost, stolen, damaged beyond repair, destroyed, encumbered, levied upon, confiscated, condemned, seized or (g) if attached;
9.1.5 Lessee or any guarantor Guarantor dies (if an individual) or is dissolved (if a partnership or corporation);
9.1.6 Whenever Lessor in default good faith believes the prospect for payment or performance under this Lease or fails to comply with under any other present or future agreement with Lessor is impaired or in favor good faith believes the Equipment hereunder or under any other agreement with Lessee is insecure.
9.2 Lessor may in addition to any other remedies provide hereunder, collect a "late charge" not to exceed an amount equal to twenty-five percent (25%) of any installment which is not paid within ten (10) days after the due date thereof.
9.3 Upon the occurrence of any default, Lessor may declare to be immediately due and payable to Lessor all Rents due and to become due under this Agreement plus all other amounts (including late charges) due hereunder and under all related documents, less any customary refund to Lessor in respect of unearned finance charges, all without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby expressly waived by Lessee. Upon the occurrence of any default: (i) Lessor shall have all rights and remedies of a secured party under the Uniform Commercial Code (UCC) as from time to time in effect in any applicable jurisdiction and under any applicable laws; (ii) Lessor may enter upon the premises where the Equipment is located and take immediate possession of and remove the Equipment by summary proceedings or otherwise, all without liability to Lessee, whether for the restoration of damage to any property caused by such taking or otherwise, for or by reason of such entry or taking of possession or otherwise; and (iii) Lessor may require Lessee, at Lessee's expense, to assemble the Equipment and to return it fully insured against all risks to a place designated by Lessor. Lessee shall pay all expenses incurred in exercising Lessor's remedies hereunder, The ▇▇▇▇▇▇▇▇ Groupincluding, Inc. without limitation, costs of collection and repossession, reasonable attorneys' fees, and advances made by Lessor to protect its rights in the Equipment. Lessor's acceptance of payment or performance after such is due shall not constitute waiver of any direct default or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Groupany other provision hereof, Inc.. For purposes and waiver of this Section 14any default shall not constitute waiver of any other default. Lessor's remedies are cumulative, the term “guarantor” not alternative. No exercise or partial exercise of any remedy shall mean preclude exercise of any present other remedy or future guarantor of all or any portion of the obligations remainder of Lessee under this Agreementany such partially exercised remedy.
Appears in 1 contract
Sources: Lease Agreement (DLR Funding, Inc.)
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) Grantor will be in default under this Deed of Trust upon the occurrence of any one or more of the following events: (i) Any payment is not made when due under the Note, this Deed of Trust or any other Loan Document; (ii) There is a default under, a breach of, or failure to perform any other covenant, agreement or obligation to be performed under this Deed of Trust or any other Loan Document or under any guaranty of all or any part of the Secured Obligations; (iii) Any representation or warranty contained in this Deed of Trust or any other Loan Document, or any financial information furnished to Beneficiary in connection with the Loan, proves to be false or misleading in any material respect; (iv) Grantor defaults under any lease or other contract or agreement relating to the collateral, and such default is not cured within the applicable cure period, if Lessee any; (v) Grantor, or the maker of the Note if different from Grantor, is in default with respect to any other loan from Beneficiary to Grantor and/or such other borrower; (vi) Grantor, any maker of -11- the Note if different from Grantor, or any guarantor of the Loan fails to pay when due his, her or its debts generally as they become due, or files a petition or action for relief under any rent bankruptcy, or Organization or insolvency laws or makes an assignment for the benefit of creditors, or (vii) an involuntary petition is filed against Grantor, any maker of the Note if different from Grantor, or any guarantor of the Loan under any bankruptcy, reorganization or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails insolvency laws, or a custodian, receiver or trustee is appointed to performtake, keep possession, custody or observe any term, provision control of the Collateral or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other termproperties or assets of Grantor, provision of any maker of the Note if different from Grantor, or covenant contained in this Agreement of any guarantor of the Loan and any such failure shall remain unremedied for petition or appointment is not set aside, withdrawn or dismissed within thirty (30) days after written notice thereof is given from the date of filing or appointment.
(b) In the event of a default Beneficiary may declare the Secured Obligations, without limitation, the Loan and all other indebtedness evidenced by Lessor, Servicer the Note or any other agent Loan Document, immediately due and payable after notice as set forth in Section 2 below, and/or exercise its rights and remedies under the Loan Documents and applicable law including, without limitation, foreclosure of Lessor this Deed of Trust judicially as a mortgage or nonjudicially pursuant to Lessee; (d) any seizure or confiscation the power of sale. Beneficiary's exercise of any Vehicle of its rights and remedies shall not constitute a waiver or cure of a default. Beneficiary's failure to enforce any of its remedies in the event of a default shall not constitute a waiver of the default or any subsequent default of its rights and remedies with respect to such default. In the event of foreclosure, the cost of the title premium for the trustee's sale guaranty (or equivalent title policy or report) shall be paid for by Grantor and shall be added to and be a part of the Secured Obligations. If this Deed of Trust or any of the other Loan Documents are referred to an attorney for enforcement or for preservation of Beneficiary's rights or remedies, and whether or not suit is filed or any proceedings are commenced, all of Beneficiary's costs and expenses incurred in connection therewith including, without limitation, Trustee's and attorneys' fees (including attorneys' fees for any appeal, bankruptcy proceeding or any other act proceeding), accountants' fees, appraisal and internal appraisal review fees, inspection fees (other than including inspections for hazardous substances, asbestos containing materials, and compliance with building and land use codes and regulations), engineering fees, and expert witness fees and costs of title reports shall be added to and be a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion part of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force Secured Obligations and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreementpayable on demand.
Appears in 1 contract
Default Remedies. The Each of the following shall will constitute events of a default (“Events of Default”) by Lessee under this Agreement: hereunder; (a) if Lessee fails to pay rent within five (5) days from and after the date such payment of rent is due and payable or Lessee fails to pay any other amount when due under any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) daysSchedule; (b) if Lessee fails to performmaintain the insurance required hereunder or breaches any other term, keep provision, obligation or covenant hereof (including without limitation any Schedule) or commits any other act of default specified in this Lease; (c) any representation or warranty of Lessee contained herein or in any other document or instrument delivered in connection herewith or made from time to time hereafter is false or misleading when made; (d) Lessee or any guarantor, surety, endorser or pledgor of property given to secure Lessee's obligations hereunder ("Guarantor") becomes insolvent, ceases to do business as a going concern, or transfers or sells all or substantially all of its assets without the prior written consent of Lessor; (e) the Equipment or any Item is abused, illegally used, or misused; (f) the death, dissolution , merger, consolidation or reorganization of Lessee or any Guarantor; (g) Lessee or any Guarantor makes any assignment for the benefit of creditors, or if a petition in bankruptcy, reorganization, insolvency, receivership or the like is filed with respect to Lessee or any Guarantor or property of Lessee or any Guarantor is attached or a receiver, trustee or liquidator is appointed for Lessee or any Guarantor or any of Lessee's or Guarantor's property or whenever Lessor may deem itself insecure hereunder; (h) the transfer of more than a 25% ownership interest in Lessee or any Guarantor by shareholders, partners, members or proprietors thereof in any year without Lessor's prior written consent, (i) Lessee or any Guarantor (x) incurs any accumulated funding deficiency within the meaning of the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations thereunder, equal to 5% of Lessee's consolidated tangible net worth (as defined by generally accepted accounting principles), or (y) incurs any liability of comparable size to the pension Benefit Guaranty Corporation, (j) Lessee or any material subsidiary or any Guarantor fails to comply with the provisions of the Fair Labor Standards Act of 1938, as amended, (k) Lessee or any Guarantor fails to pay or perform or observe any term, provision covenant, agreement or condition contained in, or there shall occur any payment or other default under or as defined in, any other agreement applicable to Lessee or any Guarantor or by which Lessee or any Guarantor is bound (as used herein, an "Other Agreement") involving a liability, indebtedness or performance obligation of Lessee or any Guarantor with a potential liability to Lessee or any Guarantor in an amount equal to or in excess of $50,000, which shall not be remedied within the period of time (if any) within which such Other Agreement permits such default to be remedied, regardless of whether such default (i) is waived by any other party to such Other Agreement or (ii) produces or results in the cancellation of such Other Agreement or the acceleration of such liability, indebtedness or other obligation; (l) attachment, distraint, levy, execution or final judgment for the payment of money aggregating in excess of $50,000 will be outstanding against Lessee or its property for more than sixty (60) days from the date of entry and will not have been discharged in full or stayed or fully bonded; (m) Lessee or any Guarantor shall suffer the loss of any material license or franchise when Lessor shall reasonably conclude that such loss fairly impairs Lessee's or such Guarantor's ability to perform its obligations required hereunder or with respect hereto; or (n) Lessee or any Guarantor shall violate any financial covenant contained in Section 11 any agreement for borrowed money applicable to Lessee or Guarantor as of the Commencement Date of any Schedule and all such financial covenants shall survive the satisfaction of debt applicable thereto and shall be deemed incorporated herein by reference and remain fully applicable to Lessee's obligations hereunder. Upon any such default, Lessor, at its option, may do any one or more of the following: (1) declare this Lease and any or all Schedules in default upon notice to Lessee, whereupon the entire amount of rent and all other amounts remaining to be paid over the balance of the term of all Equipment then leased thereunder, computed from the date of Lessee's default, will become immediately due and payable and be accelerated; (2) proceed by appropriate court action or actions to enforce Lessee's performance of this AgreementLease and/or to recover damages for the breach thereof; (c3) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in cancel this Agreement Lease and any such failure shall remain unremedied for thirty (30) days after written or all Schedules upon notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d4) any seizure whether or confiscation of any Vehicle not this Lease or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of Schedules be so cancelled, and without notice to Lessee, repossess the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdictionEquipment wherever found, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe without legal process, and for this purpose Lessor and/or its agents may enter upon any premises of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition under control or business jurisdiction of Lessee or any guarantor; agent of Lessee without liability for suit, action or other proceeding by Lease (gany damages occasioned by such repossession being hereby expressly waived by Lessee except for damages occasioned by gross negligence or willful misconduct) if Lessee and remove the Equipment therefrom. Lessor's remedies as provided herein are not exclusive but are cumulative and in addition to all other remedies in Lessor's favor at law, in equity or in bankruptcy. The receipt and acceptance by Lessor of any rent or other payment after a default will not be deemed to be a waiver of such default by Lessor. Lessor shall not, by any act, delay, omission, or otherwise, be deemed to have waived any default or any guarantor of its rights or remedies hereunder unless such waiver be in writing, signed by the Lessor, and then only to the extent therein set forth. In the event that any court determines that any provision in this Lease is invalid or unenforceable in default under whole or in part, such determination will not prohibit Lessor from establishing its damages as a result of any breach of this Lease in any action in which Lessor seeks to recover such damages. Any repossession or resale of any Equipment will not bar an action for damages for breach of this Lease, and the bringing of an action or the entry of judgment against Lessee will not bar Lessor's right to repossess any or all Equipment. Upon cancellation of any Schedule upon default, Lessee will, at its sole cost and expense, cease using the Equipment, store the Equipment for up to ninety (90) days while maintaining the insurance required above, promptly return the Equipment to Lessor when directed to do so F.O.B. the destination specified by Lessor, in the same condition as received, reasonable wear and tear and normal depreciation excepted. Lessee shall pay on demand holdover rent equal to a full monthly rent for each month or any day thereof during which Lessee fails to comply with return the Equipment when so directed by Lessor and this obligation is without limitation to any other present or future agreement with or in favor consequential damages for which Lessee may be responsible as a result of such failure to return the Equipment. With respect to any Equipment returned to Lessor, The ▇▇▇▇▇▇▇▇ Groupor repossessed by Lessor pursuant to provision (4) above, Inc. Lessor may hold or use such Equipment for any direct purpose whatsoever or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Groupeither sell same at private or public sale, Inc.. For purposes of this Section 14for cash or credit, or re-lease same for such term and upon such rental as will be solely determined by Lessor. In the term “guarantor” shall mean any present event that Lessor is able to sell or future guarantor of re-lease all or any portion Equipment returned to Lessor then the proceeds of any sale or re-leasing of such Equipment, after first deducting therefrom all costs and expenses of repossession, storage, repairs, reconditioning, sale, re-leasing, attorneys' fees and collection fees with respect to such Equipment, shall be deducted from the damages for which Lessee is obligated hereunder. In the event of the obligations sale or re-leasing by Lessor of any such Equipment after default hereunder or in the event of a Casualty Occurrence under Section 6 hereof, then Lessee will be liable for, and Lessor may forthwith recover from Lessee as liquidated damages for breach or termination of this Lease, and not as a penalty, an amount equal to the sum of (X) the entire amount of rent which would have accrued for the balance of the term for such Equipment computed from the date of Lessee's default or, in the case of a Casualty Occurrence, computed as of the rent payment date immediately preceding the date of the Casualty Occurrence discounted in each case as provided for hereinafter plus (Y) any final payment due under the Schedule discounted as provided for hereinafter, less (Z) the proceeds, if any, of any sale or re-leasing of such Equipment, after first deducting therefrom all costs and expenses of repossession, storage, repairs, reconditioning, sale, re-leasing, attorney's fees and collection fees with respect to such Equipment provided, however, the amount for which Lessee shall be obligated as liquidated damages shall in no event be an amount less than 10% of Lessor's Cost. If Lessee fails to deliver any Equipment to Lessor or Lessor is unable, for any reason, to effect repossession of any Equipment, then with respect to such Equipment, Lessee will be liable for, and Lessor may forthwith recover from Lessee as liquidated damages for breach or termination of this Agreement.Lease, and not as a penalty, an amount equal to the sum of the amounts specified in items (X) and (Y) above for such Equipment. Whether or not any Equipment is returned to, or repossessed by Lessor, as aforesaid, Lessee will also be liable for, and Lessor may forthwith recover from Lessee, all unpaid rent and other unpaid sums that accrued prior to the date of Lessee's default. In addition to the foregoing, Lessor may also recover from Lessee all costs and expenses, including without limitation fees of collection agencies and
Appears in 1 contract
Sources: Master Lease Purchase Agreement (Star Telecommunications Inc)
Default Remedies. The following shall constitute events of default (“Events events of Default”) Default by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; : (b) if Lessee fails to perform, keep or observe any term, . provision or covenant contained in Section 11 of this Agreement; : (c) if Lessee fails to perform, keep or observe any other term, . provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, . Servicer or any other agent of Lessor to Lessee; lessee: (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at al any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, . or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; : or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessorlessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. Inc. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement. Upon the occurrence of any Event of Default. Lessor. without notice to Lessee, will have the right to exercise concurrently or separately (and without any election of remedies being deemed made), the following remedies: (a) Lessor may demand and receive immediate possession of any or all of the Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; if Lessee fails to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term}, Lessor. Servicer, any other agent of Lessor and any of their respective independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles; (b} Lessor may enforce performance by Lessee of its obligations under this Agreement; (c) Lessor may recover damages and expenses sustained by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns by reason of Lessee’s default including, to the extent permitted by applicable law, all costs and expenses, including court costs and reasonable attorneys’ fees and expenses, incurred by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns in attempting or effecting enforcement of Lessor’s rights under this Agreement (whether or not litigation is commenced} and/or in connection with bankruptcy or insolvency proceedings; (d) upon written notice to Lessee, Lessor may terminate Lessee’s rights under this Agreement; (e) with respect to each Vehicle, Lessor may recover from Lessee all amounts owed by Lessee under Sections J(b) and J(c) of this Agreement (and, if Lessor does not recover possession of a Vehicle, (i} the estimated wholesale value of such Vehicle for purposes of Section 3(c} shall be deemed to be $0.00 and (ii} the calculations described in the first two sentences of Section 3(c} shall be made without giving effect to clause (ii) in each such sentence): and/or (f) lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable law or in equity. A termination of this Agreement shall occur only upon written notice by Lessor to Lessee. Any termination shall not affect Lessee’s obligation to pay all amounts due for periods prior to the effective date of such termination or Lessee’s obligation to pay any indemnities under this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative.
Appears in 1 contract
Sources: Master Equity Lease Agreement (Bowman Consulting Group Ltd.)
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails to perform, keep or observe any term, provision or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. Inc. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement
(a) Lessor may demand and receive immediate possession of any or all of the Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; if Lessee fails to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term), Lessor. Servicer, any other agent of Lessor and any of their respective independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles; (b) Lessor may enforce performance by Lessee of its obligations under this Agreement; (c) Lessor may recover damages and expenses sustained by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns by reason of Lessee’s default including, to the extent permitted by applicable law, all costs and expenses, including court costs and reasonable attorneys’ fees and expenses, incurred by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns in attempting or effecting enforcement of Lessor’s rights under this Agreement (whether or not litigation is commenced) and/or in connection with bankruptcy or insolvency proceedings; (d) upon written notice to Lessee, Lessor may terminate Lessee’s rights under this Agreement; (e) with respect to each Vehicle, Lessor may recover from Lessee all amounts owed by Lessee under Sections 3(b) and 3(c) of this Agreement (and, if Lessor does not recover possession of a Vehicle, (i) the estimated wholesale value of such Vehicle for purposes of Section 3(c) shall be deemed to be $0.00 and (ii) the calculations described in the first two sentences of Section 3(c) shall be made without giving effect to clause (ii) in each such sentence); and/or (f) Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable law or in equity. A termination of this Agreement shall occur only upon written notice by Lessor to Lessee. Any termination shall not affect Lessee’s obligation to pay all amounts due for periods prior to the effective date of such termination or Lessee’s obligation to pay any indemnities under this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative.
Appears in 1 contract
Sources: Master Equity Lease Agreement
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee fails to perform, keep or observe any term, provision or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The ▇C▇▇▇▇▇▇▇ Group, Inc. or any direct or indirect subsidiary of The ▇C▇▇▇▇▇▇▇ Group, Inc.. Inc. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement Upon the occurrence of any Event of Default, Lessor, without notice to Lessee, will have the right to exercise concurrently or separately (and without any election of remedies being deemed made), the following remedies: (a) Lessor may demand and receive immediate possession of any or all of the Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; if Lessee fails to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term), Lessor. Servicer, any other agent of Lessor and any of their respective independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles; (b) Lessor may enforce performance by Lessee of its obligations under this Agreement; (c) Lessor may recover damages and expenses sustained by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns by reason of Lessee’s default including, to the extent permitted by applicable law, all costs and expenses, including court costs and reasonable attorneys’ fees and expenses, incurred by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns in attempting or effecting enforcement of Lessor’s rights under this Agreement (whether or not litigation is commenced) and/or in connection with bankruptcy or insolvency proceedings; (d) upon written notice to Lessee, Lessor may terminate Lessee’s rights under this Agreement; (e) with respect to each Vehicle, Lessor may recover from Lessee all amounts owed by Lessee under Sections 3(b) and 3(c) of this Agreement (and, if Lessor does not recover possession of a Vehicle, (i) the estimated wholesale value of such Vehicle for purposes of Section 3(c) shall be deemed to be $0.00 and (ii) the calculations described in the first two sentences of Section 3(c) shall be made without giving effect to clause (ii) in each such sentence); and/or (f) Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable law or in equity. A termination of this Agreement shall occur only upon written notice by Lessor to Lessee. Any termination shall not affect Lessee’s obligation to pay all amounts due for periods prior to the effective date of such termination or Lessee’s obligation to pay any indemnities under this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative.
Appears in 1 contract
Sources: Master Equity Lease Agreement (Computer Software Innovations, Inc.)
Default Remedies. The following shall constitute events of default (“Events of Default”) by Lessee under this Agreement: (a) if As used herein, the term "Default" means any of the following events: (i) Lessee fails to pay when due any rent Rent or other amount due under this Agreement and any such failure a Lease within ten days after the same shall remain unremedied for ten (10) dayshave become due; (bii) if Lessee or any Guarantor becomes insolvent or makes an assignment for the benefit of its creditors; (iii) a receiver, trustee, conservator or liquidator of Lessee or any Guarantor of all or a substantial part of Lessee's or such Guarantor's assets is appointed with or without the application or consent of Lessee or such Guarantor, respectively; (iv) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar law; (v) Lessee or any Guarantor violates or fails to perform, keep or observe perform any term, provision or covenant contained in Section 11 of either this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer Lease or any other agent of loan, lease or credit agreement or any acquisition or purchase agreement with Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)party; (evi) if any present warranty or future guaranty in favor of Lessor of all representation made by Lessee herein proves to have been false or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guarantymisleading when made; (fvii) the occurrence of there is a material adverse change in the Lessee's or any Guarantor's financial condition or business of since the related Rent Commencement Date; (viii) Lessee or any guarantorGuarantor merges or consolidates with any other corporation or entity, or sells, leases or disposes of all or substantially all of its assets without the prior written consent of Lessor; or (gix) if Lessee or any guarantor Guarantor, if an individual, dies or, if not an individual, is dissolved; (x) a change in default under or fails to comply with any other present or future agreement with or control occurs in favor of Lessor, The ▇▇▇▇▇▇▇▇ Group, Inc. Lessee or any direct or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes of this Section 14, the term “guarantor” shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.Guarantor;
Appears in 1 contract
Sources: Master Equipment Lease Agreement
Default Remedies. The Guarantor shall be in default hereunder in the event that any of the following shall constitute events of default (“Events each an "Event of Default”") by Lessee under this Agreement: shall occur or exist:
(a) if Lessee fails to pay when due Any representation or warranty made by the Guarantor, or any rent of its officers, herein, or other amount due under this Agreement and in any such failure written statement or certificate furnished at any time in connection herewith, shall remain unremedied for ten (10) days; prove untrue in any material respect as of the date it was made, or
(b) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any termobligation, provision covenant, agreement, or covenant contained undertaking of the Guarantor set forth in Section 11 of this Agreement; Sections 3, 9.5, 9.8, 9.13, 9.14 and/or 9.15 hereof, or
(c) if Lessee fails The Guarantor shall fail to observe, perform, keep or observe comply with any obligation, covenant, agreement, or undertaking of the Guarantor set forth in any section or provision hereof other term, provision or covenant contained than those identified specifically in this Agreement subsection (b) above and any the Guarantor shall not have corrected such failure shall remain unremedied for within thirty (30) days after the giving of written notice thereof is given to the Guarantor by Lessor, Servicer the Agent or any other agent of Lessor Bank that the specified failure is to Lessee; be corrected, or
(d) The Guarantor and/or any seizure Restricted Subsidiary defaults in any payment of principal or confiscation interest due and owing upon any Indebtedness in excess of $1,000,000, or, in the case of the Guarantor, in the payment or performance of any Vehicle obligation permitted to be outstanding or incurred pursuant to Sections 9.10 and/or 9.12 hereof in excess of $1,000,000, beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which any such obligation is created, if the effect of such default is to accelerate the maturity of the related Indebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity or foreclose on any lien on property of the Guarantor securing the same, except that defaults in payment or performance of non-recourse obligations of the Guarantor or any other act (other than Restricted Subsidiary shall not constitute Events of Default under this Section 10(d) unless such defaults have, individually or in the aggregate, a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor)material adverse effect on the business or financial condition of the Guarantor; (e) provided, that it shall be an Event of Default hereunder if any present default occurs (after giving effect to any applicable grace period) under the Senior Notes permitted by Section 9.10(h) of this Guaranty or future guaranty in favor under the Indenture, or
(i) any Restricted Subsidiary shall (A) generally not pay its debts as such debts become due, or (B) make a general assignment for the benefit of Lessor creditors, or (C) apply for or consent to the appointment of a receiver, a custodian, a trustee, an interim trustee or liquidator of itself or all or any portion a substantial part of its assets, or (D) be adjudicated a debtor or have entered against it an order for relief under Title 11 of the obligations United States Code, as the same may be amended from time to time, or (E) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of Lessee under this Agreement shall at any time other law (whether federal or state) relating to relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding (whether federal or state) relating to relief of debtors, or (F) suffer or permit to continue unstayed and in effect for thirty (30) consecutive days any reason cease to be in full force and effect judgment, decree or shall be declared to be null and void order, entered by a court of competent jurisdiction, which approves a petition seeking its reorganization or if the validity appoints a receiver, custodian, trustee, interim trustee or enforceability liquidator of any such guaranty shall be contested itself or denied by any guarantorof all or a substantial part of its assets, or (G) take or omit to take any other action in order thereby to effect any of the foregoing or (H) fail to pay and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon it or its income, profits, or properties, and/or all lawful claims for labor, materials, and supplies, which, if any guarantor unpaid, might become a lien or charge against such properties, in all cases before the same shall deny that itbecome in default, he or she has any further liability or obligation under any such guaranty or if any guarantor shall (I) fail to comply with any and all Environmental Laws applicable to such Subsidiary, its properties, or observe activities, or (J) fail to observe, perform, or fulfill any of the termsits obligations, provisions covenants or conditions contained in any evidence of Indebtedness or other contract, decree, order, judgment, or instrument to which such guaranty; Subsidiary is a party or by which it or its assets are bound, and (ii) any such event or events described in (i) above shall in the reasonable judgment of the Banks have a material adverse effect on the business or financial condition of the Guarantor, or
(f) An Event of Default specified in Article X of the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or Agreement shall have occurred and be continuing, or
(g) if Lessee The Guarantor shall (i) make a general assignment for the benefit of creditors, (ii) file a voluntary petition under any chapter or provision of Title 11 United States Code (Bankruptcy), as from time to time in effect (the "Bankruptcy Code") or a petition or answer seeking reorganization of the Guarantor or a readjustment of its Indebtedness under the Bankruptcy Code or any guarantor is other federal or state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, (iii) consent to the appointment of a receiver or trustee of its properties, or (iv) cease to be or be unable to pay its debts generally as they become due, or
(h) Relief shall be ordered against the Guarantor as debtor in default any involuntary case under the Bankruptcy Code, or fails to comply with a petition or proceedings for bankruptcy or for reorganization shall be filed against the Guarantor under the Bankruptcy Code or any other present federal or future agreement state law providing for relief of debtors, reorganization, liquidation, or arrangements with creditors, and the Guarantor shall admit the material allegations thereof, or an order, judgment or decree entered therein shall not be vacated or stayed within thirty (30) days of its entry, or a receiver or trustee shall be appointed for the Guarantor or its properties or any part thereof and remain in possession thereof for thirty (30) days, or
(i) The Guarantor defaults in the performance of any obligation in the Subordination Agreement or in favor the performance of Lessorany other agreement, The ▇▇▇▇▇▇▇▇ Groupcovenant, Inc. term or condition in the Subordination Agreement, then, in any such event (other than an Event of Default referred to in Section 10(g) or 10(h) above), and at any time thereafter, the Agent and/or the Required Banks may at their option, by written notice delivered or mailed to the Guarantor, do any one or more of the following: (a) declare the Debt to be immediately due and payable, and upon any such declaration such Debt shall become and be forthwith due and payable by Guarantor without any further notice, presentment, or demand of any kind, all of which are expressly waived by the Guarantor, or (b) require the Guarantor to purchase the Debt at par value, without recourse, within ten (10) days after such notice, by paying to the Agent, in immediately available U.S. funds, an amount equal to the unpaid principal amount then outstanding on the Notes and any other matured or unmatured Debt owing to the Banks, plus the unpaid accrued interest on the Notes at the rate or rates determined in accordance with the Agreement. If any Event of Default referred to in Section 10.07(e), 10.07(f) or 10.07(g) of the Agreement or any direct Event of Default referred to in Section 10(g) or indirect subsidiary of The ▇▇▇▇▇▇▇▇ Group, Inc.. For purposes 10(h) of this Section 14Guaranty shall occur, the term “guarantor” Debt shall mean become and thereafter be immediately due and payable by the Guarantor without any present presentment, demand, or future guarantor notice of any kind, all or any portion of which are hereby waived by the Guarantor. The foregoing rights, powers, and remedies of the obligations Agent and the Banks are not exclusive and are in addition to any and all other rights, powers, and remedies provided for hereunder (including, without limitation, under Section 13 hereof), at law, and/or in equity. The exercise by the Agent and/or the Banks of Lessee under this Agreementany right, power, or remedy shall not waive or preclude the exercise of any other rights, powers, and/or remedies.
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